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RITA W. GRUBER, Chief Judge
Appellant Charles Silmon was charged in the Sebastian County Circuit Court with delivery of hydrocodone, a Class B felony in violation of Ark. Code Ann. § 5-64-426(c)(2)(A), and with the sentencing enhancement offense of "Proximity to certain facilities" in violation of Ark. Code Ann. § 5-64-411, alleging that the delivery was committed on or within 1000 feet of the real property of a church. A jury found Silmon guilty of both charges, and he was sentenced to five years' imprisonment on the delivery charge and the statutory ten years' imprisonment on the enhancement. Silmon does not appeal the delivery conviction. He argues only that the circuit court erred in ruling that his sentencing-enhancement offense did not require proof of a culpable mental state. We reverse and remand.
At the jury trial, Fort Smith police officer Greg Napier testified that he participated in the controlled buy of narcotics from Silmon. The buy occurred at Silmon's home located at 1500 Rutgers Circle. Napier testified that the New Apostolic Church is located at 1208 Princeton Street, which is around the corner from Silmon's residence. Napier physically measured the distance from Silmon's home to the church using a Rolatape, which amounted to 998 feet. The straight distance on Google Maps measured 820 feet.
At the close of the State's case, Silmon's counsel moved for directed verdict, challenging only the proximity enhancement as follows:
I'm going to move for directed verdict on the proximity to the church to the certain facilities charge. I'm not moving for directed verdict on the actual delivery of the hydrocodone. I've admitted to the Jury that my client did that. I believe that the evidence is sufficient for that to go to the Jury, but I object to the proximity to certain facilities going to the Jury.
In looking at the jury instruction, it says the State must prove beyond a reasonable doubt that he committed this offense. It does not talk in here about what the particular mental state is, but there has to be a mental state.
In denying the motion, the circuit court stated, "This is almost a strict liability issue. In the statute and in the instruction, there is no mention of mental state. It's just, he's done it, he committed a crime like this within that ... distance." Silmon's counsel renewed the motion at the close of all the evidence, which was again denied. The jury found Silmon guilty of the delivery charge and found that Silmon committed the delivery offense within 1000 feet of a church.
Arkansas Code Annotated section 5-64-411 provides that a person is subject to enhanced sentencing of an additional ten-year term of imprisonment if the person "[p]ossesses with the purpose to deliver, delivers, manufactures, or trafficks a controlled substance in violation of §§ 5-64-420 - 5-64-440" and "[t]he offense is committed on or within" 1000 feet of the real property of a church. Ark. Code Ann. § 5-64-411(a)(1)(B)(2)(H) (Repl. 2016). For his sole argument on appeal, Silmon contends that the circuit court erred in ruling that the sentencing enhancement did not require proof of a culpable mental state. The State, acknowledging our recent decision in Small v. State , 2018 Ark. App. 80, 543 S.W.3d 516, concedes error. In Small , we held that Ark. Code Ann. § 5-64-411 requires a culpable mental state, explaining,
Arkansas Code Annotated section 5-64-411, however, adds an enhanced sentence for a person found guilty of certain offenses, including that for which appellant was convicted, only if an additional requirement is met. That additional requirement is the location where the act is committed. Accordingly, we hold that the circuit court erred in concluding that section 5-64-411 did not require a culpable mental state, and we reverse and remand on this point.
Small v. State , 2018 Ark. App. 80, at 5-6, 543 S.W.3d at 520. Because Arkansas Code Annotated section 5-64-411 does not proscribe a specific mental state, one must be imputed pursuant to Ark. Code Ann. § 5-2-203(b) (Repl. 2013), which provides,
Except as provided in §§ 5-2-204(b) and (c), if the statute defining an offense does not prescribe a culpable mental state, a culpable mental state is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly.
While the State acknowledges the circuit court's error, it contends we must affirm if substantial evidence was presented that Silmon acted recklessly in delivering hydrocodone within 1000 feet of the real property of a church, citing case law that we can affirm the circuit court for reaching the right result for a different reason. See Williams v. State , 343 Ark. 591, 604, 36 S.W.3d 324, 333 (2001). We disagree with the State's assertion. Because the circuit court erred in concluding that Ark. Code Ann. § 5-64-411 did not require a culpable mental state and improperly instructed the jury, we must reverse and remand.
Reversed and remanded.
Virden and Whiteaker, JJ., agree.
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ROBERT J. GLADWIN, Judge
The Jefferson County Circuit Court set aside its default judgment against appellee-Shahrokh Javidzad and Y&S Pine Bluff, LLC (Y&S), which is an administratively dissolved LLC solely owned by Javidzad. Shokrolla Eliasnik appeals, arguing three points: (1) the circuit court erred by granting appellee's motion to set aside default judgment because it had been deemed denied; (2) the circuit court abused its discretion by granting appellee's Arkansas Rule of Civil Procedure 59 (2016) motion because the service question was meritless, waived, and barred; and (3) the circuit court erroneously ignored the savings statute by dismissing appellant's lawsuit with prejudice. We affirm.
I. Procedural History
A. The Default Judgment
Appellant filed a complaint on April 21, 2015, alleging that appellee had written seventeen checks to him over the past five years totaling $505,000. Appellant had tried to deposit the first three checks, but they were returned due to insufficient funds. Appellant claimed that he was entitled to restitution from appellee in twice the amount of the seventeen checks. See Ark. Code Ann. § 4-60-103 (Repl. 2011). Appellant alleged in his complaint that he was sending written demand to appellee's last known addresses, 4030 West 25th Street, Pine Bluff, Arkansas 71603 and 10435 Santa Monica Boulevard, 2nd Floor, Los Angeles, California 90025.
On June 4, 2015, appellant filed a motion for default judgment claiming that he had attempted to serve Y&S but was unable to perfect service through certified mail. Appellant alleged that Javidzad was the registered agent for process for Y&S according to the Arkansas Secretary of State's records. Appellant stated that he had served appellee on May 4, 2015, through the Arkansas Secretary of State, see Ark. Code Ann. § 16-58-120 (Repl. 2005) (the long-arm statute); thirty days had elapsed; and neither Y&S nor Javidzad had filed an answer or pleading. Thus, appellant asked for default judgment pursuant to Arkansas Rule of Civil Procedure 55(a).
A damages hearing was held on September 1, 2015, and the circuit court noted that "[appellee] was served on April 29, 2015, and since that time, he has not filed an answer, nor has he filed any motion pursuant to Rule 12.[ ] He is in default. You may call your first witness." Appellant's counsel presented an affidavit signed by appellant and a letter mailed April 21, 2015, asking for damages in addition to the $515,000 double damages. The circuit court asked if appellee had responded, and appellant's counsel said, "No response." The circuit court awarded $2500 in attorney's fees and a $1,515,030 judgment with interest against appellee. The judgment was filed on September 1, 2015.
B. Motion to Set Aside Default Judgment
On August 8, 2016, appellee filed a motion to set aside the default judgment under Rule 55(c), arguing that the default had been procured by fraud. Appellee claimed that appellant had represented to the circuit court that appellee's last known addresses were in Pine Bluff, Arkansas, and at 10435 Santa Monica Boulevard, 2nd Floor, Los Angeles, California 90025. Appellee asserted that at the time the complaint was filed in April 2015, he and appellant were parties in a lawsuit that remained pending in California and that the subject matter of the California complaint involved the same business dispute that was the subject of the instant complaint. The California pleadings were attached and incorporated. Appellee alleged that appellant filed proofs of service in the California court stating that appellee was personally served at 1608 Sawtelle Boulevard, Los Angeles, California 90025. Therefore, appellee asserted that at the time of the filing of the instant matter, appellant knew that appellee's office address was 1608 Sawtelle Boulevard in Los Angeles, and appellant knowingly and deliberately provided the circuit court with outdated and incorrect addresses for appellee. Appellee alleged that appellant's statement that appellee's last known address was anything other than 1608 Sawtelle Boulevard in Los Angeles was perjury.
Appellee also claimed that appellant knew his home address in Beverly Hills and that prior to this dispute, the parties had been family friends for many years, appellant having been in appellee's home and residing in the same neighborhood. Appellee claimed that appellant knew his telephone number and email address. Appellee alleged that appellant defrauded the circuit court to gain an advantage in the California litigation. Appellee claimed that the fraud was discovered when appellant's son alluded to him that a judgment had been entered against him in Arkansas.
Appellant responded that he had relied on the Arkansas Secretary of State's records when obtaining appellee's address. He denied that the California litigation involved the same business dispute because he sued appellee under Arkansas statutes seeking restitution for insufficient checks in the instant matter. He also denied having any personal knowledge of appellee's whereabouts. Appellant claimed that appellee received valid service of the complaint through his designated agent pursuant to Arkansas's long-arm statute. Appellant also contended that appellee had failed to establish fraud.
At the November 28, 2016 hearing on appellee's motion to set aside the default judgment, appellant testified using an interpreter. He said that he lives in Beverly Hills, California, that he does not work, and that he could speak very little English. He said that his son had filed the lawsuit on his behalf against appellee.
Appellee testified that he lives in Beverly Hills, California, that he had known appellant for about ten years, and that appellant had filed a lawsuit against him in California. Appellee said that appellant's lawyer in California had personally served him with the California complaint at his office at 1608 Sawtelle Avenue, Los Angeles, California 90025, and proofs of service were filed. When appellant later amended his California complaint, it was served on appellee's attorney. Appellee also said that he had provided his office address of 1608 Sawtelle to appellant when he answered discovery requests in the California case. When appellant filed suit against him on April 21, 2015, in Arkansas, his office address was 1608 Sawtelle Avenue, Los Angeles, California 90025. Appellee said that he did not know of the Arkansas lawsuit until he learned of the default judgment through appellant's son, and his attorney researched it.
Appellant testified that he did not know appellee's whereabouts between 2013 and 2015. He said that he never provided his attorneys in California or Arkansas with the address of appellee, and that neither asked him for it. He said that he did not speak to his Arkansas attorney before the lawsuit was filed, and he did not know if he had ever talked to his Arkansas attorney.
The circuit court found that there was no proof of fraud presented and that no meritorious defense was provided. It found that service was valid because appellant used the addresses for appellee on file with the Arkansas Secretary of State's office and that appellee had a duty to update the records at the Arkansas Secretary of State's office. The Arkansas Secretary of State was served, and that officer forwarded the lawsuit to appellee at the last known addresses. Thus, the circuit court denied from the bench the motion to set aside the default judgment.
II. Post-Hearing Proceedings
A. Motions
Appellee filed a motion for findings of fact and conclusions of law on November 29, 2016, stating that no order had been entered and requesting specific findings and conclusions because the circuit court did not state any as to why the default judgment should stand against him individually. Appellee stated that Arkansas law requires that service giving actual notice of a lawsuit is mandatory in all cases when the whereabouts of a defendant is known to the plaintiff. Appellee then requested that the circuit court grant the motion to set aside default judgment.
Appellee filed a motion for new trial on December 21, 2016, stating that judgment had not been entered regarding the circuit court's ruling on the motion to set aside default judgment. Appellee asked for a new trial because the circuit court's decision was contrary to the preponderance of evidence and contrary to the law. Appellee alleged that there was an error in the assessment of the amount of recovery awarded to appellant and argued that the circuit court should reconsider under Arkansas Rule of Civil Procedure 59.
In the supporting brief, appellee claimed that Arkansas's long-arm statute was not applicable because the checks on which the cause of action was premised were not written in Arkansas, the parties' agreement of June 9, 2010, occurred in California, and appellant never attempted to have appellee served outside the State of Arkansas. See Ark. Code Ann. § 16-58-120(a) and (b)(1). Further, appellee alleged that the parties' agreement of June 9, 2010, contained a choice-of-law provision that California law would govern. Appellee also argued that appellant failed to perfect service at the addresses of which appellant had actual knowledge based on the discovery answers filed in the California lawsuit. Further, appellant failed to strictly adhere to the requirements of section 16-58-120. Appellee claimed that because the default judgment was void, appellee was not required to demonstrate a meritorious defense. Finally, appellee argued that the damages awarded in the default judgment were excessive, because appellant's complaint alleged that only three checks were shown to be returned for insufficient funds; thus, the award should be as to only those three.
Appellant responded, arguing that appellee's Rule 59 motion was untimely, because Rule 59(b) requires that such motions be brought within ten days after entry of the judgment. Because the default judgment was filed September 1, 2015, appellant claimed that appellee's motion under Rule 59 was time-barred. Appellant also argued that appellee's arguments were barred by the law of the case, that the trial court's decision-to deny the motion to set aside the default judgment-was not clearly against the law, and that the damages were not excessive.
Appellee filed an amended motion to set aside default judgment and brief on February 7, 2017, restating and adopting all the allegations made in the original motion filed on August 8, 2016, and in all the submissions since that time. Appellee moved to set aside the default judgment, relying on the exhibits from the November hearing, which included certified copies filed in the California lawsuit: (1) complaint and exhibits; (2) proof of service on Javidzad; (3) proof of service on Y&S; (4) first amended complaint and exhibits; and (5) excerpts from appellee's responses to appellant's first set of interrogatories. Appellee argued that these certified exhibits confirmed that no acts occurred within the State of Arkansas to give rise to the application of Arkansas's long-arm statute. Relying on these exhibits, appellee made the same arguments he had made in the motion for new trial filed in December 2016.
B. Order Denying Motion to Set Aside Default Judgment
On February 15, 2017, the circuit court filed findings of fact and conclusions of law reflecting that the original motion to set aside the default judgment was denied. The order states:
There was no proof of fraud presented to the Court and; further, no meritorious defense was provided to the Court, which would cause the Default Judgment to be set aside.
The Court finds that the service was valid. The Plaintiff used the addresses that were on file with the Arkansas Secretary of State's office for the LLC. The Defendants have a duty to update the records at the Arkansas Secretary of State's office and the Defendants failed to do so. Because they were not able to locate the Defendants with the information contained at the Secretary of State's office, the Secretary of State became the agent of service of process, pursuant to law, for the Defendants. The Secretary of State's office was served and they then forwarded the lawsuit to the Defendants at their last known address. The Court finds that this was all done pursuant to the Rules and to the law; and, the Motion is denied.
....The Defendants Amended Motion to Set Aside Default Judgment is denied because it is untimely.
C. Motions to Reconsider
On February 27, 2017, appellee filed a motion for amended findings of fact and conclusions of law, asking the circuit court to amend its findings on service related to appellee under the long-arm statute. Appellee also claimed that it was not properly served under Arkansas Code Annotated section 4-27-1531 (Repl. 2016) (procedure and effect of revocation of certificate of authority for foreign corporation to transact business) and that the allegations in the complaint did not state a cause of action under Arkansas Code Annotated section 4-60-103 (restitution).
In a separate motion filed on the same day, appellee filed a motion to reconsider and vacate order and supplement to its motion for new trial. Appellee cited Arkansas Rule of Civil Procedure 60(a) (2017), and claimed that the circuit court could vacate its order within ninety days to correct errors. Appellee argued that because the circuit court erred when it denied the motion to set aside the default judgment, it should vacate the order and enter a new order granting the motion. Alternatively, appellee asked for a new trial. The same arguments were made as those raised in the motion for amended findings of fact and conclusions of law.
D. Order Setting Aside Default Judgment with Prejudice
On March 20, 2017, appellant filed a motion to strike appellee's motions; but on the same date, the circuit court filed an order setting aside the default judgment against appellee for the reasons stated in his motion to reconsider and vacate. Appellee then filed a motion to dismiss the original complaint with prejudice for failure to perfect service within 120 days and because the statute of limitations had run on appellant's claims for checks from May 2011. Following a flurry of motions, responses, and replies by both parties, the circuit court granted the dismissal with prejudice on May 8, 2017. A timely notice of appeal was filed on May 17, 2017.
III. Standard of Review
The Arkansas Supreme Court set forth the following analysis when applying Rule 4 of the Arkansas Rules of Appellate Procedure-Civil (2017):
Our standard of review for our court rules is clear. A circuit court's interpretation of a court rule is reviewed de novo by this court. Solis v. State , 371 Ark. 590, 595, 269 S.W.3d 352, 356 (2007). On that point, this court has said
We construe rules using the same means, including canons of construction, that are used to interpret statutes. Williams v. State , 347 Ark. 728, 67 S.W.3d 548 (2002) ; Smith v. Smith , 341 Ark. 590, 19 S.W.3d 590 (2000). The first rule in considering the meaning and effect of a statute or rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. When the language is plain and unambiguous, there is no need to resort to rules of statutory construction. Yamaha Motor Corp., U.S.A. v. Richard's Honda Yamaha , 344 Ark. 44, 38 S.W.3d 356 (2001). Aikens v. State , 368 Ark. 641, 643, 249 S.W.3d 788, 789-90 (2007) (citing National Front Page, LLC v. State ex rel. Pryor , 350 Ark. 286, 291, 86 S.W.3d 848, 851 (2002) ).
Gatson v. Billings , 2011 Ark. 125, at 3, 2011 WL 1206500.
In Nucor Corp. v. Kilman , 358 Ark. 107, 118, 186 S.W.3d 720, 727 (2004), the Arkansas Supreme Court determined that the standard of review is abuse of discretion when the trial court grants or denies a motion to set aside default judgment under Rule 55(c)(3) (based on fraud). Appellate courts review a circuit court's factual conclusions regarding service of process under a clearly erroneous standard. Jones v. Douglas , 2016 Ark. 166, 489 S.W.3d 648, 652.
IV. Whether the Motion to Set Aside Default Judgment was Deemed Denied
Appellant argues that the circuit court erred in granting appellee's motion to set aside default judgment because the motion was deemed denied on September 6, 2016, under Rule 4(b) of the Arkansas Rules of Appellate Procedure-Civil. Appellant argues that everything filed after September 6 should be found to be a nullity and that the order setting aside default judgment should be reversed.
Rule 4(b)(1) states:
Upon timely filing in the circuit court of a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court's findings of fact or to make additional findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the circuit court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
Appellant argues that all motions to vacate, alter, or amend a judgment are subject to the deemed-denied rule set forth in Rule 4 and that trial courts lose jurisdiction to grant these motions following the thirty-day deadline. See McCoy v. Moore , 338 Ark. 740, 1 S.W.3d 11 (1999) ; Wal-Mart Stores, Inc. v. Isely , 308 Ark. 342, 823 S.W.2d 902 (1992) ; Ark. Dep't of Human Servs. v. Waugh , 2015 Ark. App. 155, 457 S.W.3d 286. Appellant contends that a motion to set aside default judgment is subject to the deemed-denied rule. E.g. , DePriest v. Carruth , 334 Ark. 378, 974 S.W.2d 471 (1998) ; Helena-W. Helena Pub. Sch. Dist. v. Shields , 2016 Ark. App. 312, 497 S.W.3d 202 ; Shelby Cty. Health Care Corp. v. Teague , 2014 Ark. App. 382, 439 S.W.3d 74.
Appellant argues that the motions listed in Rule 4 are not an exclusive list but that Rule 4 applies to all motions to vacate a judgment. He relies on Guthrie v. Twin City Bank , 51 Ark. App. 201, 913 S.W.2d 792 (1995), in which this court dismissed the appeal because the appellant did not file her notice of appeal within thirty days of the deemed-denied motion for new trial. However, we note that the appellant in Guthrie filed her motion for reconsideration within ten days after summary judgment had been granted. In contrast, appellee's motion in the instant case was not filed within ten days, and the motion was a request to set aside a default judgment, not summary judgment.
Appellee argues that because his motion was filed more than ten days after the default judgment was entered, the deemed-denied rule does not apply. We agree. Rule 4 provides that a motion to vacate, alter, or amend a judgment is deemed denied after thirty days only if the motion is "made no later than ten days after entry of judgment." Ark. R. App. P.-Civ. 4(b)(1). Here, appellee filed its motion to set aside 342 days after judgment was entered; thus, Rule 4(b)(1) does not apply. See DePriest , supra (defendant filed a motion to set aside default judgment nineteen days after judgment was entered; circuit court denied the motion nine months later; supreme court held the motion was denied when the order was entered and notice of appeal was timely because it was filed within 30 days of that order and that Ark. R. App. P.-Civ. 4(b), (c), and (d) do not contemplate a motion to set aside a default judgment, and the time constraints mandated by those provisions are inapplicable). Accordingly, we hold that appellant's first point on appeal is without merit.
V. Whether it Was an Abuse of Discretion to Grant the Rule 59 Motion
Appellant contends that the circuit court abused its discretion when it granted appellee's motion to reconsider and vacated the default-judgment order because (1) appellant effected valid service on appellee; (2) appellee failed to raise validity of service in his motion or at the hearing; and (3) the circuit court held and reaffirmed that service was valid in its default-judgment order. For the reasons stated below, we are not persuaded by appellant's arguments.
First, appellant contends that the circuit court abused its discretion by granting the motion to set aside because he had perfected service of process. He contends that he served Y&S-an LLC that had failed to pay its franchise taxes, which resulted in the revocation of its certificate of authority-by issuing certified mail, return receipt requested, to its registered agent. See Ark. R. Civ. P. 4. He argues that the apparent closure of the business at the address indicated on the Secretary of State's records made the Secretary of State Y&S's agent for service. See Ark. Code Ann. §§ 4-32-1007(c) (Repl. 2016) and 4-20-113 (Supp. 2017). Appellant also relies on Arkansas Code Annotated section 4-27-1531(d), which provides:
The Secretary of State's revocation of a foreign corporation's certificate of authority appoints the Secretary of State the foreign corporation's agent for service of process in any proceeding based on a cause of action which arose during the time the foreign corporation was authorized to transact business in this state.
Thus, appellant claims that he issued valid service to appellee through the Secretary of State.
Appellant also argues that service was perfected on appellee based on Arkansas's long-arm statute because appellee committed acts in this state and then left. See Ark. Code Ann. § 16-58-120. Appellant contends that appellee is deemed to have committed the actions because Y&S's certificate had been revoked. Larzelere v. Reed , 35 Ark. App. 174, 816 S.W.2d 614 (1991) (officers and directors of a corporation who actively participate in its operation during the time when the corporate charter is revoked for failure to pay corporate franchise taxes are individually liable for debts incurred during the period of revocation). Further, he claims that the checks were "cut" in Arkansas because Y&S was a sole-member, single-asset LLC that exclusively owns a parcel of real estate in Pine Bluff. Thus, appellant claims that he complied with the long-arm statute and service was perfected.
Appellee argues that appellant did not properly serve him under Arkansas's long-arm statute. We agree and hold that the circuit court was not clearly erroneous in finding that appellee was not properly served. First, the complaint does not allege that any acts were done in Arkansas. The cause of action is based on Arkansas's restitution statute, which permits recovery on checks written on accounts with insufficient funds. There is no information in the complaint regarding where the checks were written or on which account they were written. Further, there was evidence presented at the November 2016 hearing that the checks were written in California and that before this suit was filed, appellant had sued appellee in California based on the checks.
Second, appellant was not in Arkansas. Thus, he is not included in section 16-58-120(b)(1), which states, "Any resident or nonresident person who commits acts in this state sufficient to give an individual in this state a cause of action...." (Emphasis added.) Appellant did not allege that he was in Arkansas when the cause of action accrued, when he filed suit, or that he had ever been to Arkansas before the November 2016 hearing.
Third, appellant did not send process to appellee's last known address. See Ark. Code Ann. § 16-58-120(b)(2)(B). The statute requires process be sent to the last known address, not the last address on file with the Arkansas Secretary of State. Appellee presented evidence that appellant or his attorney knew of appellee's more recent California addresses, both home and office. Therefore, the last known address that appellant knew of was something other than what was on file with the Secretary of State. Further, appellant's reliance on the Secretary of State to send service by certified mail is sufficient only if notice of the service and a copy of the process are sent by certified mail by the plaintiff or his attorney to the defendant at his last known address. See Ark. Code Ann. § 16-58-120(b)(2)(B).
It was not clearly erroneous to determine that service was ineffective under Arkansas Code Annotated section 4-27-1531(d) because service on the Secretary of State is valid only if the proceeding is "based on a cause of action which arose during the time the foreign corporation was authorized to conduct business in this state." Because appellant neither alleged nor produced evidence that this cause of action arose while Y&S was authorized to conduct business in Arkansas, service was not proper. Appellant's argument that he properly served appellee under Arkansas Code Annotated section 4-20-113 was not raised below. Therefore, the argument is not preserved for this court's review. Young v. Welch , 2016 Ark. App. 614, at 3, 2016 WL 7232081.
Second, appellant claims that the motion for reconsideration was a deficient motion for new trial under Rule 59 and that appellee's request was barred because it had been decided by the circuit court when it denied the motion to set aside the default judgment. Again, this argument is not preserved for appellate review because it was not raised below. Young , supra.
Insufficiency of service of process is an affirmative defense, subject to waiver if not raised in the responsive pleading or by motion to dismiss. Ark. R. Civ. P. 12(h)(1) ; Lawson v. Edmondson , 302 Ark. 46, 786 S.W.2d 823 (1990). Appellant claims that it was error to grant a motion for new trial that raised an affirmative defense for the first time. Jackson v. Mundaca Fin. Servs. , 349 Ark. 84, 76 S.W.3d 819 (2002). Appellant argues that appellee did not timely raise the service issue and that it was waived because it was not included in the motion to set aside default judgment. Harley v. Dempster , 2017 Ark. App. 159, 512 S.W.3d 698 (affirmative defenses may not be raised after the conclusion of the trial).
We are not persuaded that the motion for new trial was the first time that sufficiency of service of process was before the circuit court. Beginning with appellee's initial motion to set aside default judgment, service of process was the issue to be determined at every stage. Appellee argued that he was entitled to notice of the lawsuit, that appellant knew of the addresses, and that service was invalid. The circuit court squarely ruled on the issue, and it is preserved for our review.
Third, appellant argues that the issue of service is barred because it was finally decided in the default judgment itself. He contends that in the order denying the motion to set aside default judgment, the circuit court found that service was valid. Thus, appellant claims that res judicata bars relitigation of the issue. Appellant's argument is premised on his belief that the motion to set aside default judgment was deemed denied and that no appeal was made within the proper time. Thus, appellant claims that appellee's motion for new trial was an improper attempt to resurrect a dead issue. Majors v. Pulaski Cty. Election Comm'n , 287 Ark. 208, 697 S.W.2d 535 (1985) (issue dead after motion for new trial was deemed denied and no appeal was made). Appellant argues that, as in Majors , appellee attacked a judgment with a posttrial motion; that motion was deemed denied thirty days later; and no appeal was made, so the issue was put to rest. However, as we have held above, the motion to set aside was not subject to being deemed denied under Ark. R. App. P.-Civ. 4 ; thus, the issue of service was not barred.
VI. Whether the Savings Statute is Applicable
Appellant argues that the circuit court erred by dismissing with prejudice because he filed the complaint within the statute of limitations and effected valid service of process, or he at least made a good-faith effort to do so. Thus, appellant argues that the savings statute allows him to file a new action within one year. See Ark. Code Ann. § 16-56-126 (Repl. 2005). He contends that a timely and completed attempt at service is all that is needed to afford the benefit of the savings statute. Jones , supra ; Rettig v. Ballard , 2009 Ark. 629, 362 S.W.3d 260.
We have already held that appellant's attempt at service was not valid. Based on the evidence and reasoning as set forth in part V above, the circuit court's conclusion that the attempt was not made in good faith is not clearly erroneous. Accordingly, we affirm.
Affirmed.
Virden and Vaught, JJ., agree.
Because Javidzad is the sole owner of Y&S, "appellee" will be used to designate Javidzad or Javidzad on behalf of Y&S.
Arkansas Rule of Civil Procedure 12.
We recognize that the pleadings refer to Boulevard rather than Avenue, as testified to by Javidzad.
Appellant filed a motion for reconsideration on March 28, 2017; a response to appellee's motion to dismiss on April 4, 2017; a response and supporting brief to appellee's sur-reply on April 17, 2017; a reply on his motion to reconsider on April 18, 2017; and a motion to supplement briefing on appellee's motion to dismiss with prejudice on April 24, 2017. Appellee filed a reply in support of his motion to dismiss on April 6, 2017; a response to appellant's motion for reconsideration on April 6, 2017; a sur-reply in opposition to appellant's motion for reconsideration on April 17, 2017; and a response to appellant's motion to supplement briefing on April 24, 2017.
Appellee distinguishes the cases cited by appellant as involving motions filed within ten days of the judgment. See Shelby Cty. Health Care , supra ; Helena-W. Helena Pub. Sch. Dist. , supra.
Ark. Code Ann. § 4-32-1007 provides in pertinent part:
(c) A foreign limited liability company transacting business in this state without registration may be served with process under § 4-20-113 if the foreign limited liability company:
(1) Fails to appoint an agent for service of process under § 4-20-112;
(2) No longer has an agent for service of process; or
(3) Has an agent for service of process that cannot with reasonable diligence be served.
Ark. Code Ann. § 4-20-113 provides in pertinent part:
(b) If an entity fails to appoint an agent under this subchapter or if an entity that previously filed a registered agent filing with the Secretary of State no longer has a registered agent, or if its registered agent cannot with reasonable diligence be served, the entity may be served by registered or certified mail, return receipt requested, addressed to one or more of the governors of the entity by name at its principal office in accordance with any applicable judicial rules and procedures. | [
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WAYMOND M. BROWN, Judge
Appellants appeal from the circuit court's denial of their motion to compel arbitration. On appeal, they argue that (1) under Arkansas law, the claims asserted on behalf of Glenda Sue Talley are governed by an arbitration agreement because Glenda Sue was the intended third-party beneficiary of the arbitration agreement; and (2) the claims asserted in this case fall within the broad scope of the arbitration agreement. We affirm.
On June 28, 2010, Glenda Sue signed a power of attorney stating the following:
I constitute and appoint as my priority power of attorney, Jessie Talley, my husband; however, if he cannot serve or cannot continue to serve, then I hereby nominate and appoint second priority, my son, Jesse Alan Talley; however, if he cannot serve or cannot continue to serve, then I hereby nominate and appoint third priority, my daughter, Peggy Sue Talley-McMillon to be my attorney-in-fact for me in my name and in my place, to exercise this power of attorney at any time.
Glenda Sue was admitted as a resident of Pine Hills Health & Rehabilitation LLC (Pine Hills) on March 10, 2012. At the time of her admission, Glenda Sue suffered from Alzheimer's and dementia, among other things, resulting in her mental incapacity. Admission documents included an arbitration agreement. The arbitration agreement was optional as a paragraph contained therein, being the second paragraph above the signature block, states that the resident understands "that execution of the Agreement is not a precondition to admission or to the furnishing of services to the Resident by the Facility[.]" Tonja Belt, daughter of Glenda Sue, signed the agreement as the "Responsible Party." On the following page, the agreement requested that "[i]f the resident is unable to consent or sign this provision because of physical disability or mental incompetence or is a minor and a Responsible Party is signing this provision[,]" the responsible party should identify his or her relationship to the resident. Belt wrote "Daughter" in the space provided. She did not check where the agreement stated, "A copy of my guardianship papers, durable power of attorney or other documentation, has been provided to the Facility and is attached." Glenda Sue did not sign the agreement.
Jesse Alan filed a complaint against the facility itself and certain administrators that worked at the facility, on Glenda Sue's behalf as an incapacitated person, on April 15, 2016, asserting claims of ordinary negligence for failures in ordinary duties of care and medical-malpractice negligence for failures in professional standards of care of a long-term care facility. The appellants filed their answer on May 19, 2016, generally denying all material allegations in the complaint and asserting that the complaint should be dismissed for a number of reasons including failure to state facts upon which relief can be granted.
On November 15, 2016, appellants filed a motion to compel arbitration and separately filed brief in support asserting that because Glenda Sue was a third-party beneficiary of a valid, enforceable arbitration agreement between appellants and Tonja Belt, Jesse Alan should be ordered to submit to arbitration in accordance with that agreement. Jesse Alan responded on November 30, 2016, denying that the arbitration agreement was valid or binding against Glenda Sue as Belt was not "the Resident, or the person duly authorized by the Resident" to execute the agreement and accept its terms, a requirement of the arbitration agreement. Appellants replied to Jesse Alan's response on December 13, 2016.
A hearing on the matter was scheduled for February 7, 2017; however, it was canceled on February 6, 2017, and the circuit court entered an order on the parties' motions and briefs alone, without a hearing, on February 17, 2017. Therein, it stated the following:
1. It is undisputed that Tonja Belt lacked legal authority to act in a representative capacity to bind Glenda Talley to the arbitration agreement. Accordingly, no valid agreement to arbitrate exists between Glenda Talley and [Appellants].
....
3. For the reasons fully argued in plaintiff's response to defendants' motion, and considering all of the arguments the defendants raised in their motion, supporting brief and reply to plaintiff's response, the Court finds that no valid agreement exists between Tonja Belt in her individual capacity and [Appellants]. In addition, the Court finds that Glenda Sue Talley did not receive any benefit from Tonja Belt signing the optional arbitration agreement. Accordingly, the Court finds that Glenda Sue Talley was not an intended third-party beneficiary of a valid arbitration agreement between Tonja Belt and defendants.
4. The Court has considered all of the arguments that the defendants have raised in support of their motion, supporting brief and reply, and makes a general finding that Plaintiff's arguments and contentions regarding the application of the third party beneficiary doctrine to the facts of this case are well taken and that the motion to compel arbitration is denied.
This timely appeal followed.
An order denying a motion to compel arbitration is an immediately appealable order. We review a circuit court's order denying a motion to compel arbitration de novo on the record. We decide the issues on appeal using the record developed in the circuit court without deference to the circuit court's ruling. We are not bound by the circuit court's decision, but in the absence of a showing that the circuit court erred in its interpretation of the law, we will accept its decision as correct on appeal. Further, we recognize that arbitration is strongly favored in Arkansas.
The appellants' first argument before this court is that the claims asserted on Glenda Sue's behalf are governed by the arbitration agreement because she is an intended third-party beneficiary of the arbitration agreement signed by Belt in her individual capacity. In support of this argument, appellants assert that (1) a valid contract existed between Pine Hills and Belt, in her individual capacity; and (2) the arbitration agreement between Pine Hills and Belt was made for the benefit of Glenda Sue. The circuit court specifically found that Belt "lacked legal authority to act in a representative capacity to bind Glenda Talley to the arbitration agreement"; and thereby, found that no valid agreement existed between Talley and appellants. We first consider this finding of the circuit court, although we note that appellants do not appear to specifically challenge this finding.
There are two elements that are necessary in order to apply the third-party beneficiary doctrine under Arkansas law: (1) there must be an underlying valid agreement between two parties, and (2) there must be evidence of a clear intention to benefit a third party. Although an arbitration provision is subject to the Federal Arbitration Act, the question of whether a dispute should be submitted to arbitration is a matter of contract construction, and we look to the language of the contract that contains the agreement to arbitrate and apply state-law principles to decide whether the parties' agreement is valid. In Arkansas, the same rules of construction apply to arbitration agreements as apply to agreements in general. The essential elements for an enforceable arbitration agreement are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligation.
When a third party signs an arbitration agreement on behalf of another, as was done in this case, the court must determine whether the third party was clothed with the authority to bind the other person to arbitration. The burden of proving an agency relationship lies with the party asserting its existence. Not only must the agent "agree to act on the principal's behalf and subject to [her] control," but the principal must also indicate that the agent is to act for her.
Appellants concede that they have never argued, and therefore, are not now arguing that Belt had agency authority to sign for Glenda Sue in a representative capacity; accordingly, they put forth no evidence that Belt had the authority to bind Glenda Sue. However, we note that the evidence before the circuit court was that Glenda Sue, who could not sign for herself due to multiple mental conditions, executed a valid power of attorney prior to her mental incapacity granting Jesse Alan her power of attorney. Belt listed Glenda Sue as a party to the optional arbitration agreement and signed the same without the authority of Glenda Sue, who could not give such authority due to her mental incapacity, or the authority of Jesse Alan, the person to whom Glenda Sue had chosen to delegate such decision-making for her and who specifically asserts that Belt did not have any authority to sign for Glenda Sue. Because Belt had no representative authority, she could not bind Glenda Sue to an arbitration agreement with appellants. Accordingly, we hold that there was no error with the circuit court's finding that no valid arbitration agreement existed between Glenda Sue and appellants.
Appellants argue that there was a binding contract between them and Belt in her individual capacity. Appellee argues that "[t]he identification of the 'Responsible Party' in the introductory paragraph makes clear that the Responsible Party is not an independent party to the agreement" but someone whose interests align with that of Glenda Sue, an asserted party to the agreement; the responsible party has no separate interests from the resident. The only evidence regarding such a claim is the arbitration agreement itself. The arbitration agreement states that it "is entered into between Pine Hills Health and Rehabilitation, LLC (the "Facility") and Glenda Talley (the Resident or the Responsible Party)[.]" This makes clear that Glenda Sue, not Belt, is the asserted party to the arbitration agreement as it only allows for the resident or the responsible party to be a party to the agreement and Glenda Sue's name is listed.
Accordingly, Belt is not a party to the agreement as she named Glenda Sue as a party to the arbitration agreement, though Belt had no authority to do so. We hold that the circuit court did not err in finding that Belt did not intend to sign in her individual capacity. Since she was not signing in her individual capacity, no valid arbitration agreement existed between the appellants and Belt.
Because there must first be a valid agreement to arbitrate between two parties when determining whether to apply to the third-party-beneficiary doctrine and when determining whether a circuit court erred in denying a motion to compel, and we hold that a valid arbitration agreement does not exist, we do not address appellants' second argument that this dispute falls within the scope of the arbitration agreement as our decision on their first argument renders appellants' second argument moot.
Affirmed.
Gladwin and Whiteaker, JJ., agree.
It is not clear what became of Jessie Talley, whom Glenda Sue gave first priority on her power of attorney; however, Jesse Alan asserts in the complaint that he is acting pursuant to his power of attorney of Glenda Sue and no one contests the validity of his appointment.
Madison Cos., LLC v. Williams , 2016 Ark. App. 610, at 5, 508 S.W.3d 901, 905 (citing Ark. R. App. P.-Civil 2(a)(12); see also Ark. Code Ann. § 16-108-228(a)(1) (Repl. (2016)).
Id. (citing HPD, LLC v. TETRA Techs., Inc. , 2012 Ark. 408, at 5, 424 S.W.3d 304, 307 ).
Id. (citing Wyatt v. Giles , 95 Ark. App. 204, 205, 235 S.W.3d 552, 554 (2006) ).
Id. (citing Diamante v. Dye , 2013 Ark. App. 630, at 4, 430 S.W.3d 196, 199 ).
Id. (citing Courtyard Gardens Health & Rehab., LLC v. Arnold , 2016 Ark. 62, at 6, 485 S.W.3d 669, 673 ).
Appellants state in their arguments that they have "never asserted that Glenda Sue Talley signed the arbitration or that Tonja Belt, her daughter, had agency authority to sign in a representative capacity for Ms. Talley."
Progressive Eldercare Servs.-Chicot, Inc. v. Long , 2014 Ark. App. 661, at 4, 449 S.W.3d 324, 327 (citing Andrews v. Victor Metal Prods. Corp. , 239 Ark. 763, 394 S.W.2d 123 (1965) ; Perry v. Baptist Health , 358 Ark. 238, 189 S.W.3d 54 (2004) ).
S. Pioneer Life Ins. Co. v. Thomas , 2011 Ark. 490, at 3-4, 385 S.W.3d 770, 772 (citing Tyson Foods, Inc. v. Archer , 356 Ark. 136, 147 S.W.3d 681 (2004) ); see Bank of the Ozarks, Inc. v. Walker , 2014 Ark. 223, at 4, 434 S.W.3d 357, 360 (citing DIRECTV, Inc. v. Murray , 2012 Ark. 366, at 3, 423 S.W.3d 555, 559 ).
Id. (citing Alltel Corp. v. Sumner , 360 Ark. 573, 576, 203 S.W.3d 77, 79 (2005) ).
Reg'l Care of Jacksonville, LLC v. Henry , 2014 Ark. 361, at 6-7, 444 S.W.3d 356, 360 (citing Bank of the Ozarks, Inc. v. Walker , 2014 Ark. 223, 434 S.W.3d 357 ).
Broadway Health & Rehab, LLC v. Roberts , 2017 Ark. App. 284, at 4, 524 S.W.3d 407, 410 (citing Courtyard Gardens Health & Rehab., LLC v. Williamson , 2016 Ark. App. 606, at 3, 509 S.W.3d 685, 688 ).
Id. at 5, 524 S.W.3d at 410 (citing Courtyard Gardens Health & Rehab. v. Quarles , 2013 Ark. 228, at 7, 428 S.W.3d 437, 443 ).
Id. (citing Quarles , 2013 Ark. 228, at 6, 428 S.W.3d at 442-43 (quoting Evans v. White , 284 Ark. 376, 378, 682 S.W.2d 733, 734 (1985) )).
(Emphasis added.)
See Broadway Health & Rehab, LLC v. Roberts , 2017 Ark. App. 284, at 7, 524 S.W.3d 407, 412 (citing Progressive Eldercare Servs.-Chicot, Inc. v. Long , 2014 Ark. App. 661, at 4, 449 S.W.3d 324, 327 ).
See Courtyard Gardens Health & Rehab., LLC v. Sheffield , 2016 Ark. 235, at 3, 495 S.W.3d 69, 71 (citing HPD, LLC v. TETRA Techs., Inc. , 2012 Ark. 408, at 6, 424 S.W.3d 304, 308 ). | [
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DAVID M. GLOVER, Judge
Tyrome Harris, Sr., appeals pro se from the trial court's denial of his petition for postconviction relief. We earlier remanded the case to the trial court for supplementation of the record to include the portions the court specifically relied upon in denying the Rule 37 petition. Harris v. State , 2017 Ark. App. 464, 2017 WL 4159567. The record has now been supplemented, and we are able to address the merits of Tyrome's appeal. We affirm the denial of postconviction relief.
During a hearing on February 8, 2016, Tyrome entered a negotiated guilty plea to the offense of first-degree battery in case no. CR-2014-3398, and in exchange, the child-enhancement and habitual-offender allegations were nolle prossed in another case (CR-2014-2754). The plea statement signed by Tyrome on February 8, 2016, included a provision that explained he could receive a total sentence from five to twenty years in the state penitentiary and/or a fine of up to $15,000.
On March 7, 2016, Tyrome was sentenced to fifteen years in the Arkansas Department of Correction, with an additional five years' suspended imposition of sentence. During the sentencing hearing, in Tyrome's presence, his counsel stated in part:
Judge, we entered a plea of guilty to battery first degree with-with the habitual dropped. The range is 5 to 20. The main point I want to make to the Court is, based on his prior record, any sentence the Court imposes today, he will have to serve 100 percent. So, whatever the sentence is-and I'm asking the Court-I told the Defendant I would ask the Court to consider a five-year sentence. He's going to have to serve day-for-day five years or any sentence the Court does impose.
....
And I'm asking the Court to show leniency. I'm asking the Court to consider a five-year sentence of which he will have to serve day-for-day.
There is nothing in the record to indicate that Tyrome expressed any concern or surprise about his counsel's comments or that he conveyed to the court his disagreement that serving 100 percent of any sentence imposed was contrary to the negotiated plea.
On April 22, 2016, Tyrome filed his Rule 37 petition for postconviction relief. He alleged four bases to support his contention that his counsel was ineffective: 1) counsel had a conflict of interest with the alleged victim, 2) the plea agreement was for no enhancements or habitual offender, 3) jail-time credit was incorrect, and 4) counsel failed to advise him that he would be required to serve 100 percent of his sentence because of a prior felony conviction. In its order, the trial court denied the petition with no hearing, finding no basis for postconviction relief on any of the grounds alleged by Tyrome in his petition. This pro se appeal followed in which Tyrome contends the trial court "abused its discretion" when it found trial counsel was effective. We find no error.
As mentioned previously, in his Rule 37 petition, Tyrome alleged four bases in support of his contention that his trial counsel was ineffective. In this appeal, he has abandoned all but one of those bases. He no longer pursues his arguments that 1) counsel had a conflict of interest with the alleged victim, 2) the plea agreement was for no enhancements or habitual offender, and 3) his jail-time credit was incorrect. However, he does still maintain that his counsel was ineffective for allegedly failing to advise Tyrome that he would be required to serve 100 percent of his sentence because of a prior felony conviction, which has been his major contention throughout. In addition, Tyrome has added some constitutional arguments in his appeal to our court that were not raised in his Rule 37 petition-arguments based on the Sixth, Eighth, and Fourteenth Amendments involving due process and cruel and unusual punishment. Because Tyrome has abandoned all but one of the arguments he pursued in his Rule 37 petition (and because the constitutional arguments he raises in this appeal were not presented to the trial court and therefore were not properly preserved), we address only Tyrome's argument alleging ineffective assistance of counsel for failure to advise him that he would have to serve 100 percent of his sentence.
In rejecting the "failure-to-advise" argument below, the trial court explained in its order:
Petitioner's final claim for relief states that counsel was ineffective for failing to inform Petitioner that he would be required to serve 100% of his sentence before becoming parole eligible. Petitioner further claims that he was led to believe he would only be required to serve 1/3 or 5 years of the sentence. Petitioner claims this omission rendered his plea involuntary. A review of the record from the sentencing hearing held March 7, 2016, conclusively shows that trial counsel explicitly stated twice on the record that Petitioner would have to serve his sentence day-for-day (Transcript p. 16) and that Petitioner would have to serve 100% of his sentence (Transcript p. 15). The Court finds this claim to be wholly without merit and denies any relief on this ground.
We have previously quoted the portions of the supplemented record relied upon by the trial court in which counsel explicitly stated that Tyrome would have to serve 100 percent of any sentence imposed.
Arkansas appellate courts do not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous. Johnson v. State , 2018 Ark. 6, 534 S.W.3d 143. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the trial court made a mistake. Id. In making a determination on a claim of ineffective assistance of counsel, we consider the totality of the evidence. Id. Our standard of review requires that we assess counsel's effectiveness under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id. In asserting ineffective assistance of counsel pursuant to Strickland , the petitioner first must show that counsel's performance was deficient. Id. This requires a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. Second, the petitioner must show that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. In doing so, the petitioner must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both Strickland showings, it cannot be said the conviction resulted from a breakdown of the adversarial process that renders the result unreliable. Id. "[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendants made an insufficient showing on one." Id. at 2, 534 S.W.3d 143. The Strickland standard applies to allegations of ineffective assistance of counsel pertaining to possible prejudice in guilty-plea and sentencing proceedings. Id.
Here, we are not left with a definite and firm conviction that the trial court made a mistake in finding that Tyrome's counsel did not fail to inform him that he would have to serve 100 percent of any sentence imposed. As noted by the trial court in its order, Tyrome's counsel stated on two occasions during the sentencing hearing that Tyrome would have to serve 100 percent of any sentence the trial court imposed. Tyrome was present at the hearing. He expressed no surprise or concern about his counsel's comments. Neither did he challenge to the trial court that the comments were contrary to the negotiated plea. Moreover, in his arguments to our court, Tyrome contends that he did not learn he would have to serve 100 percent of his sentence until he was taken into custody by the Arkansas Department of Correction and informed of that fact. The sentencing-hearing comments, where Tyrome was present, clearly rebut that portion of his contention. Still further, it is hard to give credence to his argument that he was told he would have to serve only one-third of his sentence, or five years, as part of his plea negotiation when he did not even know until the sentencing hearing that his sentence would be fifteen years.
Finally, in examining the first prong of the Strickland standard of review, we conclude Tyrome did not demonstrate that his counsel's performance was deficient. Not only do we find no clear error in the trial court's finding that Tyrome was informed by his counsel that he would have to serve 100 percent of any sentence imposed, we also note that our supreme court has held "that there is no constitutional requirement for defense counsel to inform his client about parole eligibility and that the failure to impart such information does not fall outside the range of competence demanded of attorneys in criminal cases." Paige v. State , 2013 Ark. 432, at 4, 2013 WL 5883809. Because we have concluded that Tyrome did not establish the first Strickland prong (deficient performance by counsel), it is not necessary for us to address the second prong (prejudice). Johnson, supra.
Affirmed.
Gruber, C.J., and Harrison, J., agree.
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We observe that, in the State's brief, the State offers three alternative reasons to affirm the legality of the search. However, we disagree with each of these arguments.
The State first argues that the search of the wallet was legal because Mr. Shay consented to the search. Arkansas Rule of Criminal Procedure 11.1 provides, in relevant part:
(a) An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search.
(b) The state has the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion.
The State posits that nothing in the video/audio recording or in the testimony suggests that appellant's consent was not freely or voluntarily given or that the search of his wallet exceeded the scope of the consent given.
We cannot agree, under the circumstances presented, that Mr. Shay consented to the search or to the officer's opening of his wallet such to justify the search of the wallet under Rule 11.1. A careful review of the officer's video/audio recording is instrumental. After the officer ordered Mr. Shay out of the car, the officer told Mr. Shay not to reach in his pockets and ordered him to put his hands up. The officer then announced a "safety check" and began to pat Mr. Shay down. Clearly, at this point, Mr. Shay had not consented to being searched and was complying with the officer's commands under duress. During the pat down, the officer discovered the wallet and asked, "What's that right there?" Mr. Shay never spoke during the search. It is evident from the context of the recording and from the officer's testimony that the officer took the wallet, looked inside, found Mr. Shay's identification card, and removed the card, which revealed the methamphetamine underneath.
There was no evidence that Mr. Shay expressly invited the officer to look through his wallet, nor can we infer a voluntary consent to search from the totality of the circumstances. The officer testified that it was only after he had detected the wallet during the weapons pat-down that Mr. Shay handed it to him. However, the trial court did not specifically find that Mr. Shay handed the wallet to the officer, but rather found that "I assume when he pulled it out it was for the officer to have it" and "so he voluntarily gave him the evidence." Upon review by this court, the video/audio recording does not confirm that Mr. Shay removed his wallet from his pocket or handed the wallet to the officer. The video was taken from a body-cam on the officer and is trained on the upper body and face of Mr. Shay, but the video does not cover the specific area around Mr. Shay's pockets. The recording shows that while Mr. Shay had his hands away from his pockets as ordered by the police, the wallet was discovered and the officer exclaimed, "What's that right there," obviously referring to the wallet. Therefore, we disagree with the trial court's finding that Mr. Shay voluntary gave the officer the evidence. Nevertheless, even assuming that Mr. Shay removed his wallet at this point of the search, as found by the trial court, we cannot agree that this amounted to his voluntary implied consent to search the wallet. Upon discovery of the wallet, the recording confirms that the officer asked Mr. Shay, "What's that right there?"; so even if Mr. Shay removed his wallet from his pocket at that point, he was doing so at the officer's direction. Moreover, the act of taking a wallet from his pocket at the direction of a police officer is insufficient to infer from a totality of the circumstances that Mr. Shay voluntarily consented to the search.
Under Rule 11.1(b), it is the State's burden to prove by clear and positive evidence that consent to the search was freely and voluntarily given and was free from actual or implied duress or coercion. We hold that the State did not meet its burden of voluntary consent because there was no evidence that Mr. Shay actually consented to the officer searching him, the wallet was removed from Mr. Shay's pocket only after it was detected by the officer in the involuntary frisk, and there was no testimony or inference that Mr. Shay gave the officer permission to open his wallet and search the contents.
The State next argues that when Officer Kennedy discovered the wallet in the pat-down search he had probable cause to believe the wallet contained something subject to seizure under Arkansas Rule of Criminal Procedure 14.1, which pertains to vehicle searches and provides in relevant part:
(a) An officer who has reasonable cause to believe that a moving or readily movable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:
(i) on a public way or waters or other area open to the public[.]
....
(b) If the officer does not find the things subject to seizure by his search of the vehicle, and if:
(i) the things subject to seizure are of such a size and nature that they could be concealed on the person; and
(ii) the officer has reason to suspect that one (1) or more of the occupants of the vehicle may have the things subject to seizure so concealed; the officer may search the suspected occupants[.]
In arguing that officer Kennedy had probable cause to search the wallet under Rule 14.1, the State points to Officer Kennedy's testimony that "sometimes males carry a small amount of drugs in their wallet." The State further notes that Mr. Shay had previously denied having any identification on him.
In assessing whether Officer Kennedy had probable cause to search for contraband under Rule 14.1, we must examine the differences between reasonable suspicion and probable cause. Reasonable suspicion is defined as "a suspicion based on facts or circumstances which of themselves do not give rise to justify a lawful arrest, but give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to imaginary or purely conjectural suspicion." Ark. R. Crim. P. 2.1. Probable cause is defined as "facts or circumstances within a police officer's knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected."
Laime v. State , 347 Ark. 142, 153, 60 S.W.3d 464, 472 (2001). The same standards govern reasonable (that is to say, probable) cause determinations, whether the question is the validity of an arrest or the validity of a search and seizure. Hudson v. State , 316 Ark. 360, 872 S.W.2d 68 (1994).
In the present case, although we have determined the officer had reasonable suspicion to search Mr. Shay for weapons to ensure his safety, we conclude that there was no probable cause to search Mr. Shay's vehicle for contraband under Rule 14.1 or probable cause to believe that Mr. Shay's wallet contained illegal drugs. Nor did the trial court find that any such probable cause existed. Although Officer Kennedy testified that males sometimes carry drugs in their wallets, this supposition was insufficient to rise to the level of probable cause to believe that Mr. Shay's wallet contained drugs. And while the State suggests that Officer Kennedy was also checking Mr. Shay's wallet for identification, the testimony showed that Mr. Shay had already been positively identified by Officer Kennedy, and at any rate an identification card is not subject to seizure. For these reasons, we do not agree with the State's claim that the officer had the authority to search more extensively than was necessary to ensure the officer's safety.
Finally, the State argues that the search of appellant's person and wallet was legal because Mr. Shay was violating a city ordinance by being present in the park after closing time. The State claims that Mr. Shay could have been arrested for violation of the ordinance, and thus that the search was authorized by Arkansas Rule of Criminal Procedure 12.1, which provides:
An officer who is making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused for the following purposes only:
(a) to protect the officer, the accused, or others;
(b) to prevent the escape of the accused;
(c) to furnish appropriate custodial care if the accused is jailed; or
(d) to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense.
Rule 4.1(a)(iii) provides that a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe the person has committed any violation of law in the officer's presence.
We do not agree that the officer's search of the appellant in this case can be legitimized based on a violation of a city ordinance. During the State's direct examination of Officer Kennedy, wherein Officer Kennedy explained his reasons for searching Mr.
Shay, Officer Kennedy did not mention anything about Mr. Shay violating a city ordinance. Nor did the trial court base its decision to deny Mr. Shay's suppression motion on any ordinance. On cross-examination, Officer Kennedy stated that being in the park after hours violated an unspecified city ordinance, but he did not arrest or even cite either of the occupants for any such violation. In fact, Officer Kennedy stated that the female passenger, who was also in the park after hours, was free to go at any time.
The primary case relied on by the State in making this argument is State v. Earl , 333 Ark. 489, 970 S.W.2d 789 (1998). In that case, a police officer stopped the appellant's truck for running a stop sign, and during the stop the officer searched the truck and found drugs. Although the officer did not arrest the appellant for running the stop sign, the supreme court nonetheless upheld the legality of the search pursuant to Arkansas Rule of Criminal Procedure 5.5, which provided:
The issuance of a citation in lieu of arrest or continued custody does not affect the authority of a law enforcement officer to conduct an otherwise lawful search or any other investigative procedure incident to an arrest.
The supreme court held that where an officer has probable cause to arrest pursuant to Rule 4.1, he may validly conduct a search incident to arrest of either the person or the area within his immediate control under Rule 5.5. The supreme court stated that simply because a police officer's decision is to issue a citation in lieu of a custodial arrest, that does not affect the officer's right to conduct a search of the same scope as a search incident to arrest, as a citation is equivalent to custodial arrest for authority-to-search purposes under Rule 5.5.
We conclude that this case is distinguishable from Earl , supra , in that not only did Officer Kennedy not arrest anyone for violation of a city ordinance, he gave no indication that he ever even considered issuing a citation. Moreover, Rule 5.5, upon which the search was validated in Earl , was repealed in 1999. The repeal of the rule was in response to the United States Supreme Court's decision in Knowles v. Iowa , 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). In Knowles , the Supreme Court held that the search of a vehicle, with neither the driver's consent nor probable cause to conduct the search, by a police officer who stops the driver for speeding and issues a citation rather than arresting the driver, as authorized by an Iowa statute that was the equivalent to our Rule 5.5 , violated the United States Constitution's Fourth Amendment. The Supreme Court in Knowles declared the Iowa statute unconstitutional, and Arkansas' Rule 5.5 was repealed soon thereafter and no longer exists.
Finally, we find guidance from our supreme court's holding in State v. Sullivan , 348 Ark. 647, 74 S.W.3d 215 (2002). In Sullivan , the supreme court held that pretextual arrests, i.e., arrests that would not have occurred but for an ulterior investigative motive, are unreasonable police conduct warranting the application of the exclusionary rule under article 2, section 15 of the Arkansas Constitution. In Sullivan , the police officer arrested the appellant for speeding, illegal window tinting, driving an unsafe vehicle, failure to produce registration and insurance, and possession of a roofing hatchet. But because the officer's arrest was pretextual and would not have been effected but for the officer's suspicion that the appellant was involved in narcotics, the Sullivan court suppressed the fruits of the search incident to the pretextual arrest and accompanying search.
In the present case, we do not agree with the State's position that because Mr. Shay could have been arrested for violating a city ordinance, the search of his person was authorized. Even assuming that Mr. Shay could have been arrested for violating some ordinance, Officer Kennedy made no such arrest. Because a pretextual arrest is unreasonable police conduct giving rise to the suppression of evidence, as our supreme court squarely held in Sullivan , we cannot uphold a search made incident to no arrest at all.
For these reasons, we hold that the trial court erred in denying appellant's motion to suppress the contraband. Therefore, we reverse and remand.
Reversed and remanded.
Gruber, C.J., and Virden, Gladwin, and Harrison, JJ., agree.
Glover, J., dissents. | [
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RAYMOND R. ABRAMSON, Judge
Appellant Rodney Rayburn was convicted by a jury of one count of rape and one count of criminal attempt to commit rape. He was sentenced to twenty-five years of imprisonment on the count of rape and fifteen years on the count of criminal attempt to commit rape with both sentences to run consecutively. The victim was his thirteen-year-old daughter, H.R. Rayburn appeals his conviction, arguing that the circuit court's admission of cumulative testimony of prior bad acts was prejudicial to him and deprived him of a fair trial. He argues that the circuit court abused its discretion when it admitted evidence of incidents other than the ones with which he had been charged. We disagree and affirm.
At trial, H.R. testified that Rayburn raped her at least fifteen times over the course of seven years. She testified that on one occasion in 2014, he told her to go into the bathroom and wait for him. Rayburn told his sons to go to their room and go to bed. He then went into the bathroom, told H.R. to get on her knees, and forced her to perform oral sex on him.
On another occasion, Rayburn instructed her to go into his room, and he instructed the boys to "fix a plate" for their mother. Then, he came into the bedroom and told H.R. to get on the bed and take off her pants. He performed oral sex on her and then for approximately ten minutes unsuccessfully attempted to penetrate her vaginally.
H.R. further testified that Rayburn attempted to penetrate her anally on a trip in 2015. They were at a campground, and he instructed her to go into the showers and wait for him. He entered the shower, told her to undress, and began washing her chest and private parts. After showering, he told her to dry off and get on her knees. He forced her to perform oral sex on him and then instructed her to bend over a bench. He attempted to penetrate her anally but was unable to do so.
Rayburn was also charged in relation to one incident in a mill parking lot. H.R. testified that she, her brother, and Rayburn had gone to pick up rice hulls in a truck. When they arrived, Rayburn told her to go to a sleeper in the back of the truck and get on the bed. He then entered the sleeper, and again tried to vaginally penetrate her. There, he forced her to perform oral sex on him.
The circuit court maintains discretion to admit evidence. Turner v. State , 2014 Ark App. 428, 439 S.W.3d 88. To reverse a circuit court's evidentiary ruling, it must have abused its discretion, and prejudice must have resulted. Id. Evidence of other wrongs or acts are not admissible to show a defendant's bad character, but this evidence is admissible to show proof of motive, opportunity, intent, or plan. Ark. R. Evid. 404(b) (2017). The "pedophile exception" to Rule 404(b) allows evidence of prior sexual conduct with children to show the defendant's proclivity for a specific act with a person and helps show the depraved sexual instinct of the accused. Chunestudy v. State , 2012 Ark. 222, 408 S.W.3d 55. Under the pedophile exception, we look at factors such as the time interval between the incidents, the similarity of the incidents, and whether the defendant had an intimate relationship with the victim. Parish v. State , 357 Ark. 260, 163 S.W.3d 843 (2004).
Here, H.R.'s testimony of all the incidents fell within the pedophile exception. Her testimony showed a pattern of ongoing sexual abuse. Each incident showed that Rayburn would isolate H.R. from her brothers and force her to perform oral sex on him or attempt to penetrate her vaginally or anally. Furthermore, there are few relationships that are as intimate as a father and a daughter. H.R. testified that she was afraid of her father and that he told her not to tell anyone. In each incident, she was in her father's care. He would isolate her from others in places such as his bedroom, a bathroom, or a truck sleeper and sexually abuse her. This testimony falls within the pedophile exception because it shows Rayburn's proclivity for sexually abusing his daughter and his depraved sexual instinct.
The evidence is also more probative than prejudicial under the pedophile exception. Rayburn argues that its admission resulted in unfair prejudice that inflamed the jury. The evidence simply does not support his argument. The evidence is probative because it shows a pattern that Rayburn isolated his daughter on multiple occasions to sexually abuse her. It is also relevant to H.R.'s credibility because she testified to several incidents rather than a single incident. It further satisfies the pedophile exception because it shows Rayburn's depraved sexual instinct. While the evidence is prejudicial to him, there is nothing in the record that suggests that its prejudice to him outweighed its probative value. We hold that the circuit court did not abuse its discretion in allowing H.R. to testify as to multiple incidents of sexual abuse.
Finally, Rayburn asks us to overturn Chunestudy , supra, to the extent that the pedophile exception admits evidence without regard to Rules 403 and 404(b). In the present case, the pedophile exception is satisfied; H.R.'s testimony of other incidents when he raped her meets the requirements of Rules 403 and 404(b). In any case, we are powerless to overturn decisions by our supreme court. Osborne v. Bekaert Corp. , 97 Ark. App. 147, 152, 245 S.W.3d 185, 190 (2006). We affirm.
Affirmed.
Vaught and Hixson, JJ., agree. | [
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N. MARK KLAPPENBACH, Judge
Appellant Christopher Raymond appeals the January 26, 2018 order of the Pulaski County Circuit Court that granted the motion of appellee Linda K. Kuhns (previously Raymond) to relocate to Louisville, Kentucky, with the parties' two sons, JR (born in 2008) and ZR (born in 2010). Appellant argues that the circuit court clearly erred and that it was not in the children's best interest to grant appellee's motion to relocate. We affirm.
In reviewing child-custody cases, we consider the evidence de novo, but we will not reverse the circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. McNutt v. Yates , 2013 Ark. 427, at 8, 430 S.W.3d 91, 97. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Boudreau v. Pierce , 2011 Ark. App. 457, at 11, 384 S.W.3d 664, 671. It is well settled that the primary consideration is the welfare and best interest of the child, while other considerations are merely secondary. McNutt , 2013 Ark. 427, at 8, 430 S.W.3d at 97. We give special deference to the superior position of the circuit court to evaluate and judge the credibility of the witnesses in child-custody cases, and this deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id.
In determining whether a parent may relocate with a minor child, a circuit court must generally look to the principles set forth in Hollandsworth v. Knyzewski , 353 Ark. 470, 109 S.W.3d 653 (2003), and Singletary v. Singletary , 2013 Ark. 506, 431 S.W.3d 234. In Hollandsworth , the supreme court announced a presumption in favor of relocation for custodial parents with sole or primary custody, with the noncustodial parent having the burden to rebut this presumption. Hollandsworth , 353 Ark. at 485, 109 S.W.3d at 663. In Singletary , the court explained that the Hollandsworth presumption does not apply when the parents share joint custody of a child. Singletary , 2013 Ark. 506, at 8, 431 S.W.3d at 239-40. The proper analysis for a change-in-custody request due to the relocation of one parent in a joint-custody situation is the same as that when relocation is not involved; the court must first determine whether a material change in circumstances has transpired since the last order on custody and then whether the change in custody is in the best interest of the child. See id. When the agreement states that the parties share "joint legal custody" but that one parent has "primary physical custody" subject to certain visitation privileges, and when the ratio of actual time with the children is basically a 60/40 split, then this falls within the joint-custody analysis of Singletary . See Cooper v. Kalkwarf , 2017 Ark. 331, 532 S.W.3d 58. The Hollandsworth presumption should be applied only when the parent seeking to relocate is not only labeled the "primary" custodian in the divorce decree but also spends significantly more time with the child than the other parent. Id. ; Tidwell v. Rosenbaum , 2018 Ark. App. 167, 545 S.W.3d 228.
In this case, the parties divorced in 2012 and agreed that they would "share joint legal custody" of the boys with Linda "having primary physical custody." In 2014, the parties filed competing motions concerning visitation and custody, but in 2015, they entered into an agreed order that continued the same custodial titles but reduced Chris's parenting time. In 2017, Linda filed a motion to relocate with the children to Louisville, Kentucky, so that she could accept a job with greater earning capacity as a pilot for UPS. Chris filed a response in opposition to Linda's motion asserting various reasons why it was not in the children's best interest to permit relocation, and he also filed a motion to change primary custody to him. Linda filed a response in opposition to changing custody to Chris.
The competing motions were heard before the circuit court in December 2017. The parties both testified and presented testimony from ZR's counselor, Sara Smith; ZR and JR's counselor, Scott Loye; and a UPS pilot, Kenneth Butry. After taking the matter under advisement, the circuit court issued a twelve-page extensively detailed order in January 2018 that denied Chris's motion to change custody and granted Linda's motion to relocate, reviewing her motion under the Singletary standards. Chris appeals, arguing that the trial court's decision to permit Linda to relocate with the boys was analyzed inappropriately under the Hollandsworth standards and that the trial court's decision is not in the children's best interest. Chris does not contest that there was a material change in circumstances in this case.
Chris argues that the circuit court did not adhere to the requirement to view the evidence from a neutral point of view in determining the children's best interest as required by Singletary but instead placed an additional burden on him to rebut the presumption established by Hollandsworth that would be in favor of Linda relocating with the boys. Chris contends that Linda never presented any evidence or testimony that her move to Kentucky would be in the children's best interest; instead, he presented evidence to show that the boys needed to stay in the Little Rock area where they were thriving and where they had lived their whole lives. Chris argues that the evidence, when viewed from a neutral perspective, could lead to only one conclusion, which would be to deny Linda's petition. As we will explain, Chris has failed to demonstrate that the circuit court clearly erred, and we affirm the circuit court's order.
The circuit court acknowledged that this was "an exceedingly difficult decision" considering that these were two very involved and loving parents, both of whom had remarried and brought involved and loving stepparents into the children's lives. The circuit court specifically set out its understanding of the law on relocation and explained that "the presumption in favor of relocation does not apply." The circuit court recognized that this case required a best-interest determination in considering the parties' competing motions.
The circuit court recounted the testimony and evidence, most of which is not in dispute and is summarized as follows. Chris and Linda are lieutenant colonels in the Arkansas Air National Guard and both work at the air force base. Chris is a squadron commander of his unit, and Linda is a pilot-technician who trains pilots in this unit. Chris is not technically in Linda's chain of command, but Linda explained instances that gave her concern that she received unfavorable treatment due to Chris having indirect authority over her, which the trial court believed.
Chris and Linda had remarried to people who were good stepparents and positive influences in the children's lives. Linda's salary with the Guard was $106,655, and she had six days off per month. Linda had been offered a position with UPS that would initially require training at a lower salary, but after a year she would earn $175,000. She said that she had not accepted UPS's first job offer in July 2017 because of the situation with Chris and her children, but UPS was holding the job open for her. Linda said that her job with UPS would not require her to wear the equipment required by the Guard. This equipment had caused her neck and shoulder pain and required her to undergo physical therapy. Linda understood that after her training period, her flight schedule might require that she be gone overnight up to fourteen days at a time, but she would also have at least fourteen days off per month. She believed she had been guaranteed that her hub would be in Louisville, Kentucky, the one closest to Arkansas.
The boys attended Episcopal Collegiate School in Little Rock. Linda had already found a comparable private school, Louisville Collegiate, where they could attend in the fall of 2018; JR had been accepted for enrollment, and ZR (who is high functioning on the autism spectrum) was conditionally accepted. Linda explained that if she were permitted to relocate with the boys to Louisville, her husband's parents would live with them to help her care for the boys while she was in training or while she was working. Her husband was going to stay in Arkansas until January 2019 when he could retire from the military and then would join them in Louisville. Linda explained her willingness to expand Chris's visitation and her willingness to fly the boys to Arkansas for visitation.
Chris lived in Sherwood with his wife and two small children. He explained that he had a job contract with the Guard through 2022; that he has very flexible hours to take care of his children; and that he was not subject to deployment. Chris calculated that he had had the boys 39 percent of the time. Chris said that he and Linda had appointments with the children's counselor, Scott Loye, whom he wanted the boys to continue to see, and that the counselor was a "buddy" to the boys. Chris acknowledged that ZR has autism and said that he provided ZR with therapies. Chris did not want the boys to move and could not understand why Linda would leave her current job given that she also had great flexibility in her job. Chris noted that Linda had no family in Louisville and that Linda's father-in-law is blind, which limited his ability to help with the boys. He said that the boys were not used to Linda being gone and that her new job would be rigorous. Chris believed that the boys were thriving at their current school and wanted them to be able to continue all their current activities.
Sara Smith, ZR's counselor, testified that she would not have concerns about ZR moving because he would adjust and had the skills to do so. She stated that ZR would have to change teachers each year no matter where he attended school. She stated that Chris was initially in disagreement that ZR had autism and that Linda had been and would continue to be compliant with ZR's therapy needs.
Scott Loye, who had counseled both boys, testified that both boys had diagnoses: ZR has autism, and JR has adjustment and attachment disorders. He recommended that a multitude of steps should be taken before moving the boys to Louisville, that the boys preferred not to move, and that it would be detrimental to the boys to move them at present.
The circuit court found that it was not in the children's best interest to change custody to Chris. The circuit court stated, "No relocation case is anything but difficult." The circuit court then found:
When the court weighs the testimony of the parties and their witnesses, the court is convinced the testimony weighs in favor of [Linda] and her retaining primary physical custody of the children. The parties will continue to have joint legal custody with some modifications due to [Linda's] move. [Linda's] Motion to Relocate is granted with some conditions and modifications.
The circuit court set out the reasons for its decision, including that the move would permit Linda to acquire "a profound increase in income" that would have a beneficial impact on the children; that Linda's move was for a job opportunity and not motivated by a desire to deny Chris contact with the boys; that the educational and lifestyle opportunities in Louisville were "equal to, or greater than" those available in Little Rock; that the ability of the parties to transport the boys made continuing contact viable; that Scott Loye was in favor of the boys staying in Arkansas but that he was also viewed by Chris as the children's "buddy"; that Scott Loye's testimony was more like that of a close family friend; that Sara Smith did not have any concerns with ZR relocating; that Linda's current job was "untenable" with Chris having indirect authority over her; that neither party's families (except some of Chris's wife's family) lived in Arkansas; that Chris agreed to reduce his parenting time with the boys in the 2015 agreed order; that the circuit court had no concern that Linda would not abide its orders; that Linda would ensure the boys were enrolled in a private school of equal or greater quality than Episcopal Collegiate; that Linda would ensure the boys received "appropriate professional counseling and therapeutic services" in Louisville; that Linda had taken adequate steps to ensure that the boys had proper supervision during any work-related absence she might have during training; and that Linda's husband would be joining her in January 2019.
The circuit court required that Linda continue the children's therapy with Scott Loye pending relocation to make the move as easy on the boys as possible; that the boys continue to live in Arkansas until one week before the fall term of school; that Linda ensure the boys become more familiar with Louisville and their new school with visits before the fall term; that Chris additionally have the boys for spring break 2018, the majority of summer 2018, Thanksgiving break 2018, and Christmas break 2018, with periodic visits for Linda, all of which would be conducted in Arkansas; that Linda provide the transportation for the aforementioned Thanksgiving and Christmas breaks; that Chris have the boys for future fall breaks, Thanksgiving week, Christmas breaks, and spring breaks, and for any weekend visitation in Louisville if Linda was given twenty-one days of notice. The circuit court also required that, after Linda's UPS probationary period was completed, Linda would be responsible for flying the boys commercially or privately to Little Rock a minimum of six times per year for at least a weekend visit. The circuit court encouraged the parties to cooperate and set visitation to maximize the time Chris would have with his sons. In April 2018, the parties submitted a subsequent agreed supplemental order to establish precise dates and times of visitation periods and methods of exchange, which was approved by the circuit court.
On this record, we are not left with a distinct and firm impression that the circuit court made a mistake. The factors a trial court may consider in determining what is in the best interest of the children include the psychological relationship between the parents and the children, the need for stability and continuity in the relationship between the parents and the children, the past conduct of the parents toward the children, and the reasonable preference of the children. See Bamburg v. Bamburg , 2014 Ark. App. 269, 435 S.W.3d 6. As we understand Chris's argument, he appears to assert that the Hollandsworth presumption requires the circuit court to consider certain factors bearing on the children's best interest as it relates to the motion to relocate, but this means that those best-interest factors cannot and do not apply in the joint-custody or change-of-custody context controlled by Singletary . We disagree. The Hollandsworth best-interest factors can be relevant considerations; it is only the presumption in favor of relocation that is not to be applied. Killingsworth v. Dittmar , 2018 Ark. App. 294, 552 S.W.3d 1.
At its core, Chris's argument is that we should reweigh the evidence in a manner that is more favorable to him, but credibility determinations are left to the circuit court and we will not reweigh the evidence. See Colston v. Williams , 2018 Ark. App. 455, 556 S.W.3d 548 ; Glisson v. Glisson , 2018 Ark. App. 21, 538 S.W.3d 864. Given our standard of review and the special deference we give trial courts to evaluate the witnesses, their testimony, and the children's best interest, we cannot say that the trial court clearly erred in reaching its decision on the best interest of these children. Killingsworth v. Dittmar, supra.
Affirmed.
Harrison and Glover, JJ., agree.
Linda testified that she would be eligible to "officially separate" from the Guard in July 2018, and her husband was expected to retire in January 2019.
Linda calculated that Chris had had the boys 36 percent of the time.
The circuit court should consider the following factors in making a best-interest-of-the-child determination: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the new location; (3) the visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the new location as well as in Arkansas; and (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference. See, e.g. , Stills v. Stills , 2010 Ark. 132, 361 S.W.3d 823. | [
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ROBERT J. GLADWIN, Judge
Appellant Derrick Collins appeals the revocation of his suspended imposition of sentence (SIS) for a prior felony conviction by the Crawford County Circuit Court. Collins argues that there is insufficient evidence to support the most recent revocation on a robbery charge and that there was no notice that the petition to revoke was based on a charge of accomplice liability. We affirm.
I. Facts
On March 15, 2013, Collins was charged with aggravated burglary, aggravated robbery, kidnapping, theft of property, possession of marijuana, and possession of drug paraphernalia. He pled guilty and was sentenced to four years of probation. On August 6, 2015, the State filed a petition to revoke, alleging that Collins had failed to make payments as ordered and had failed to abide by terms and conditions of probation by absconding. He entered a plea of guilty, and his probation was revoked. Collins was sentenced to two years in a regional correctional facility and eight years SIS.
On August 14, 2017, the petition to revoke at issue in this appeal was filed. The State alleged that Collins had "committed the new offense of robbery in Sebastian County." A hearing on the petition began on December 6, 2017, and was continued and completed on January 16, 2018. Collins was found to have committed a robbery under an accomplice-liability theory, and his SIS was revoked pursuant to a sentencing order filed on January 18, 2018.
II. Standard of Review
Pursuant to Arkansas Code Annotated section 16-93-308(d) (Supp. 2017), a circuit court may revoke a defendant's SIS if a preponderance of the evidence establishes the defendant inexcusably failed to comply with a condition of the SIS. E.g. , Vangilder v. State , 2018 Ark. App. 385, 555 S.W.3d 413. The State's burden of proof in a revocation proceeding is less than is required to convict in a criminal trial, and evidence insufficient for a conviction at a criminal trial may be sufficient for revocation. Id. When the sufficiency of the evidence is challenged on appeal from an order of revocation, the circuit court's decision will not be reversed unless it is clearly against a preponderance of the evidence. Id. The appellate court defers to the circuit court's superior position in evaluating the credibility and weight to be given testimony. Id.
III. Discussion
The petition to revoke alleged that on or about August 3, 2017, Collins committed the new offense of robbery in Sebastian County and that conduct was in violation of the terms and conditions of his SIS. Pursuant to Arkansas Code Annotated section 5-12-102(a) (Repl. 2013), "[a] person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person."
The evidence presented was that the victim-Landon Silva-was lured into an SUV that Collins was driving. It is undisputed that four people other than Collins were in the SUV when Silva joined them. One person, Quentin Maroney, got in the back trunk or cargo area and partially hid. Silva testified that he knew someone was behind him when he got in the SUV but that he did not know who it was. He testified that someone hit him from behind with a pole and that is all he remembers until he awoke on the side of the road with none of his personal effects-with more than $2000, marijuana, his cell phone, keys, and $80 Nike shoes having been stolen. It is undisputed that Collins was driving the SUV. Accordingly, he claims that he could not have been the person who hit Silva from behind with the pole. Also, Collins notes that no evidence was presented that he ever touched Silva.
One of the other passengers in Collins's SUV, Sam Shaw, testified at the revocation hearing that Collins drove them to a local gas station where they picked up Shaw's brother, Maroney, and three others. Discussing his plan and directing the others from the back seat of Collins's SUV, Maroney directed Shaw to contact a local drug dealer, Silva, to arrange to buy marijuana. Shaw noted that Collins previously had driven them to buy marijuana from Silva on other occasions. Shaw indicated that Maroney spoke out loudly from the backseat about his plan to rob Silva instead of buying marijuana.
Shaw explained that Collins drove to Silva's location, at which time Silva joined the other passengers in the backseat. Maroney, who had hidden in the cargo area while en route, started punching and choking Silva. Maroney robbed Silva of his cash, marijuana, and shoes and then instructed Collins to pull over to the side of the road where Silva climbed out of the SUV and was left on the side of the road. Collins then drove to his home with the others still in the SUV. Shaw testified that Collins received a share of the cash taken from Silva.
Testimony from other witnesses at the revocation hearing was consistent with Shaw's version of the events. And police officer Raymond Stanley testified that when Collins gave a statement subsequent to his arrest, he denied knowing about or participating in the physical altercation and the robbery in his SUV but admitted having been the driver during the robbery and having smoked the stolen marijuana afterward.
Collins submits that because the State offered no evidence that he employed or threatened to employ physical force against Silva, the State offered insufficient evidence that he committed robbery; accordingly, his SIS should not have been revoked for committing that offense.
We disagree. "Physical force" is defined as any "bodily impact, restraint, or confinement" or "threat of any bodily impact, restraint, or confinement." Ark. Code Ann. § 5-12-101 (Repl. 2013). Regarding the element of theft, a person commits theft of property if the person "knowingly takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property or obtains the property of another person by deception or by threat with the purpose of depriving the owner of the property." Ark. Code Ann. § 5-36-103(a) (Repl. 2013). Even if the testimony of other witnesses was inconsistent, uncorroborated testimony of an accomplice is a sufficient basis for revocation of a suspension of sentence. E.g. , Ellerson v. State , 261 Ark. 525, 531-32, 549 S.W.2d 495, 498 (1977) ; Tipton v. State , 47 Ark. App. 187, 189, 887 S.W.2d 540, 542 (1994).
We hold that the evidence supports the finding that Collins actively participated in the robbery by driving his SUV while his passengers discussed, planned, and committed the robbery of Silva in the SUV. Collins was still driving when Silva was kicked out of the SUV on the side of the road, and he joined in divvying up the stolen cash and smoking the marijuana taken from Silva.
Based on the foregoing, we hold that the circuit court's decision to revoke Collins's SIS based on his participation in the robbery was not clearly against a preponderance of the evidence.
Affirmed.
Gruber, C.J., and Brown, J., agree. | [
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COURTNEY HUDSON GOODSON, Associate Justice
Appellant Vernell Conley appeals the circuit court's denial of his petition for a writ of habeas corpus. For reversal, Conley argues that (1) the circuit court erred in holding that his claims were not appropriate for resolution in the habeas process; (2) the extant judgment and commitment order under which he is committed is void or defective as a result of this court's decision in Conley v. State , 2014 Ark. 172, 433 S.W.3d 234, which vacated two of the three sentences that he challenged; (3) his confinement under the existing judgment and commitment order is unlawful because his sentence on the remaining count was determined by a jury that also considered evidence deemed insufficient to support his conviction on the two dismissed counts; and (4) his confinement on the remaining count violates his due-process rights because, in sentencing him, the jury considered evidence deemed insufficient to support his conviction on the two dismissed counts. We affirm.
I. Background
By amended felony information, the prosecuting attorney in Washington County charged Conley with delivery of a controlled substance (crack cocaine); possession of a controlled substance (marijuana) with intent to deliver; and possession of drug paraphernalia (digital scales). The information also alleged that Conley was a habitual offender with more than four previous felony convictions. Conley stood trial before a jury on August 26, 2010. The State's evidence disclosed that Conley delivered 0.5813 grams of crack cocaine to undercover police officers. According to the testimony, the delivery occurred on the evening of September 15, 2009, at a park in Fayetteville. However, the officers did not arrest Conley until November 6, 2009. On that date, the officers also executed a search warrant at Conley's home, where they discovered 32.5 grams of marijuana in a plastic bag and a set of digital scales. The jury found Conley guilty of delivery of crack cocaine and possession of the digital scales as drug paraphernalia. The jury acquitted Conley of possession of marijuana with intent to deliver and instead found him guilty of the lesser-included offense of possession of marijuana. As a habitual offender, Conley received sentences of sixty years for delivery of a controlled substance, six years for possession of a controlled substance, and thirty years for possession of drug paraphernalia. In affirming, the Arkansas Court of Appeals refused to reach the merits of Conley's sufficiency-of-the-evidence arguments after it determined that Conley's directed-verdict motions were not specific enough to preserve the issues raised on appeal. Conley v. State , 2011 Ark. App. 597, 385 S.W.3d 875.
Thereafter, Conley filed a petition for postconviction relief pursuant to Rule 37.1. The circuit court later granted Conley leave to file an amended petition, and in that amended petition, he alleged that he was denied effective assistance of counsel because his trial counsel (1) failed to present a witness after informing the jury in his opening statement that he would produce a witness who would testify that the marijuana and the paraphernalia did not belong to Conley, (2) did not make adequate motions for directed verdict, and (3) failed to move for severance of the possession and delivery offenses. The circuit court denied the petition, and Conley appealed. On appeal, we affirmed on Conley's first point when we could not conclude that he suffered any prejudice from counsel's remark in opening statement. Conley v. State , 2014 Ark. 172, 433 S.W.3d 234. However, we reversed on Conley's second argument because the evidence was not sufficient to support Conley's conviction of the possession charges and trial counsel's failure to make a proper directed-verdict motion was both deficient and prejudicial. Id. Because Conley's severance argument was directed solely to the possession offenses, and we determined that those charges were to be dismissed, we did not address it. We therefore "[a]ffirmed in part; reversed and remanded in part with directions to dismiss the charges of possession of a controlled substance and possession of drug paraphernalia." Id. at 13, 433 S.W.3d at 243. Conley did not petition for rehearing, and our mandate issued on May 6, 2014. Our mandate reads in its entirety:
THIS POSTCONVICTION CRIMINAL APPEAL WAS SUBMITTED TO THE ARKANSAS SUPREME COURT ON THE RECORD OF THE WASHINGTON COUNTY CIRCUIT COURT AND BRIEFS OF THE RESPECTIVE PARTIES. AFTER DUE CONSIDERATION, IT IS THE DECISION OF THE COURT THAT THE JUDGMENT OF THE CIRCUIT COURT IS AFFIRMED IN PART; REVERSED AND REMANDED IN PART WITH DIRECTIONS FOR THE REASONS SET OUT IN THE ATTACHED OPINION.
Conley filed a federal habeas petition on March 26, 2015. On Conley's motion, the federal proceedings were held in abeyance to allow him to exhaust his state remedies. Pursuant to our opinion in Conley's Rule 37 appeal, the Washington County Circuit Court entered a formal order on August 27, 2015, dismissing Conley's possession convictions. However, the circuit court did not conduct a resentencing hearing on the delivery charge or enter a new judgment and commitment order reflecting the dismissal of the two possession convictions. On April 7, 2017, Conley filed a motion to recall the mandate in his Rule 37 appeal and for leave to file an out-of-time petition for rehearing. We unanimously denied that motion on April 27, 2017. Conley remains imprisoned on his 720-month delivery sentence.
II. State Habeas Petition
Conley filed his petition for a writ of habeas corpus in the Lincoln County Circuit Court on January 26, 2018. Therein, Conley argued that (1) the existing judgment and commitment order under which he is committed is void or defective as a result of our decision in his Rule 37 appeal, which vacated two of the three sentences that he challenged; (2) his confinement under the judgment and commitment order is unlawful because his sentence on the remaining count was determined by a jury that also considered evidence deemed insufficient to support his conviction on the two dismissed counts; and (3) his confinement on the remaining count violates his due-process rights. Conley sought a new sentencing hearing limited to evidence supporting his delivery conviction and the entry of a new judgment reflecting the jury's sentence imposed on that count. The circuit court dismissed Conley's petition.
A. Standard of Review
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner who does not allege his or her actual innocence must plead either the facial invalidity of the judgment or the lack of jurisdiction by the circuit court and make a showing by affidavit or other evidence of probable cause to believe that the petitioner is being illegally detained. Id. ; Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner can show that the circuit court lacked jurisdiction or that the judgment is facially invalid, there is no basis for a finding that a writ of habeas corpus should issue. Williams v. Kelley , 2017 Ark. 200, 521 S.W.3d 104.
A circuit court's decision on a petition for a writ of habeas corpus will be upheld unless it is clearly erroneous. Johnson v. State , 2018 Ark. 42, 538 S.W.3d 819. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
B. Analysis
Conley first argues that the circuit court erred in concluding that his claims were not appropriate for resolution in the habeas corpus process. In dismissing his petition, the circuit court found that Conley's delivery conviction had been addressed on direct appeal and in a Rule 37 petition, and that "[a] habeas corpus proceeding does not provide a means to revisit the merits of issues that could have been addressed and settled, in the trial court, on appeal, or in a post-conviction proceeding." The circuit court concluded that Conley's allegations did not offer any evidence establishing probable cause that he is entitled to a writ of habeas corpus.
Conley suggests that because his existing judgment and commitment order continues to reflect the two dismissed possession convictions, he has alleged a jurisdictional defect that is cognizable in a habeas petition. In our Rule 37 opinion, we affirmed in part and reversed and remanded in part "with directions to dismiss the charges of possession of a controlled substance and possession of drug paraphernalia." Conley , 2014 Ark. 172, at 13, 433 S.W.3d at 243. We did not order a new sentencing hearing on the delivery charge or the entry of a new judgment. If Conley believed additional direction should have been given, he could have petitioned for rehearing rather than assuming that the mandate would have given direction that was not set forth in the opinion. Conley's argument that the issue of the "correctness of the recitations in the existing judgment did not arise until after this Court's mandate issued," is not persuasive. Our mandate did not add to or subtract from our opinion, and it was not inconsistent with the opinion in any way. Regardless, what Conley has advanced as a jurisdictional claim does not establish the circuit court's lack of subject-matter or territorial jurisdiction. See Rayford v. Kelley , 2016 Ark. 462, 507 S.W.3d 483 (per curiam) (holding that jurisdiction is the power to hear and determine the subject matter in controversy, and that a circuit court has subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes); Cloird v. State , 349 Ark. 33, 76 S.W.3d 813 (2002) (per curiam) (holding that an allegation that an offense was committed outside the territorial jurisdiction of the court is cognizable in a habeas proceeding).
Conley also argues in this section that even a facially valid sentence may result in jurisdictional error when it is imposed in violation of a statutorily authorized process, or if there is a change in the law that renders a previously valid sentence invalid. However, Conley's sentence was not imposed in violation of a statutorily authorized process, and unlike the claim in Jackson , Conley's claim does not concern a statutorily authorized sentence that was later declared unconstitutional. See Jackson v. Norris , 2013 Ark. 175, 426 S.W.3d 906 (remanding for resentencing of a juvenile offender after his mandatory-life-without-parole sentence was declared unconstitutional).
Conley argues in his second point that the existing judgment and commitment order is void or defective in that it continues to reflect his sentence on the two possession charges which have been dismissed. Conley asserts that the judgment contains erroneous findings regarding his delivery charge as a result of this "Court's failure to direct the trial court to conduct a re-sentencing proceeding limited to Count 1, the only count on which the jury's original verdict withstood Review in the Rule 37 appeal." Conley argues that "the trial court was not at fault in failing to order a re-sentencing hearing" and that we should correct our "procedural error in this case."
The purpose of a writ of habeas corpus is to remedy a detention of an illegal period of time. Morgan v. State , 2017 Ark. 57, 510 S.W.3d 253 (per curiam). Conley is not serving a sentence for the dismissed possession charges, and he does not argue that his sentence for the delivery charge is outside the statutory range for a habitual offender sentenced for a class Y felony. Therefore, Conley's delivery sentence is not facially invalid, and he is not being detained for an illegal period of time. See Beyard v. State , 2017 Ark. 203, 2017 WL 2378181 (stating that if a sentence is within the limits set by statute, it is legal). Conley cites no law mandating the entry of a new judgment when fewer than all of the multiple convictions were dismissed, and it is undisputed that he is not serving a sentence for either dismissed possession charge.
In his third point, Conley argues that the judgment is defective because the jury that set the sentence considered evidence not only on the delivery charge but also on the vacated possession charges. Conley cites two cases in support of this argument: Buckley v. State , 341 Ark. 864, 20 S.W.3d 331 (2000), and Taylor v. State , 354 Ark. 450, 125 S.W.3d 174 (2003). Neither is persuasive. Buckley was a direct appeal in which we held that reversible error occurred in the sentencing phase of Buckley's trial because a law-enforcement officer testified without firsthand knowledge to Buckley's prior drug activities. This type of evidentiary-error claim does not call into question the legality of the sentence or the jurisdiction of the circuit court. In Taylor , the circuit court lacked statutory authority to impose a twenty-year suspended sentence, and as a result, it lacked authority to revoke the suspension and sentence Taylor to twenty years in prison. Here, the sentence for the delivery charge was statutorily authorized, and we have said that a claim that the improper admission of evidence may have contributed to a sentence is not cognizable in a habeas proceeding. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503.
For his final point, Conley argues that his due-process rights were violated because the jury sentenced him on the delivery count while considering evidence deemed insufficient to sustain his conviction on the two dismissed possession counts. Assertions of trial error and due process claims do not implicate the facial validity of the judgment or the jurisdiction of the circuit court. Williams v. Kelley , 2017 Ark. 200, 521 S.W.3d 104. Thus, the trial court did not clearly err by denying relief on this claim.
III. Conclusion
"A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case." Johnson , 2018 Ark. 42, at 3, 538 S.W.3d at 821. In essence, Conley is attempting to pursue arguments now that were not made at trial and to resurrect arguments that were addressed in his Rule 37 appeal. None of Conley's arguments provide evidence of probable cause to believe that he is being illegally detained, and the circuit court did not clearly err in dismissing his petition.
Affirmed.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
The circuit court clearly erred when it agreed with the State that Mr. Conley had failed to state a claim that is cognizable in an Arkansas habeas proceeding. The circuit court dismissed Mr. Conley's habeas petition without an evidentiary hearing. In its written order, the circuit court reasoned,
Habeas corpus petitions are restricted to questions of whether the petitioner is in custody pursuant to a valid conviction or whether the convicting court had proper jurisdiction. Mere allegations do not establish probable cause. A petition for a writ of habeas corpus is not a substitute for post-conviction relief. A sufficiency of the evidence challenge is not a cognizable claim in a habeas action. Petitioner's challenge to the sufficiency of the charging instrument are not jurisdictional and should have been raised prior to trial.
These findings are as curious as they are illogical. In his habeas petition, Mr. Conley had asserted three grounds for relief that may be summarized as follows: (1) he remains confined on a judgment and commitment order that has been rendered void or fundamentally defective due to the supreme court's decision in the Rule 37 case; (2) he remains confined under a sixty-year sentence that was imposed by a Jury that considered the evidence supporting the marijuana and paraphernalia counts; and (3) his continued confinement under the same judgment and commitment order, which was rendered invalid by the Arkansas Supreme Court decision and was the result of the jury considering evidence relating to the two counts that the supreme court dismissed, violates due process of law. From the foregoing, it is obvious that the circuit court's findings do not address Mr. Conley's petition.
In pertinent part, the Arkansas habeas statute states:
The writ of habeas corpus shall be granted forthwith by any of the officers enumerated in S 16-112-102(a) to any person who shall apply for the writ by petition showing, by affidavit or other evidence, probable cause to believe he or she is detained without lawful authority, is imprisoned when by law he or she is entitled to bail, or who has alleged actual innocence of the offense or offenses for which the person was convicted.
Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). The Arkansas Constitution attempts to safeguard the writ of habeas corpus stating, "The privilege of the writ of habeas corpus shall not be suspended; except by the General Assembly, in case of rebellion, insurrection or invasion, when the public safety may require it." Ark. const. art, 2 § 11. Nonetheless, our case law has narrowed the focus of the writ, as this court noted most recently in Proctor v. Kelley , 2018 Ark. 382, 562 S.W.3d 837"Unless the petitioner can show that the trial court lacked jurisdiction or that the judgment is facially invalid, there is no basis for a finding that a writ of habeas corpus should issue."
I will leave for another day a broader discussion of the dubious authority for the Arkansas Supreme Court's diminution of the writ of habeas corpus. At present, I decline to speculate at what point the Arkansas Supreme Court appointed itself the General Assembly or whether there was some rebellion, insurrection, or invasion that I happened to miss. However, it is simply Orwellian to suggest that Mr. Conley's existing judgment and conviction order is not "facially invalid." It is not disputed that in light of our opinion in the Rule 37 case, Conley v. State , 2014 Ark. 172, 433 S.W.3d 234, the judgment and commitment order no longer correctly reflects the offenses for which Mr. Conley was convicted. It is an undisputable fact that the only judgment and commitment order in this case still shows that Mr. Conley was convicted of not only distribution of crack cocaine but also possession of drug paraphernalia and possession of marijuana. This leaves room for no other logical conclusion other than that the circuit court clearly erred in finding that Conley had not stated a claim that was cognizable in state habeas proceedings.
I am mindful that upon remand, the circuit court entered an order echoing our holding in the Rule 37 case, which dismissed the marijuana and paraphernalia-possession counts. However, only the judgment and commitment order and its successor the sentencing order is authorized by this court as the proper document for the final disposition of a criminal case. See Ark. Sup. Ct. Admin. Order No. 8 ("When any charge results in a commitment to the Arkansas Department of Correction or any of the following-probation, suspended imposition of sentence, commitment to Arkansas Community Correction or to the county jail, a fine, restitution, and/or court costs-the Sentencing Order shall be submitted."). Accordingly, this court, in exercising its superintending authority over circuit courts, has made mandatory the use of the sentencing order (and its direct predecessor, the judgment and commitment order). Therefore, the bit of creative writing that the circuit court drafted purporting to echo our holding in the Rule 37 case is a nullity. It is untenable to require the circuit courts of this state to execute a specific document-a judgment and commitment order-and then ignore the very rules that we have promulgated. At the very least, this court should reverse and remand this case to the circuit court to enter a substituted judgment and commitment order, consistent with our opinion in the Rule 37 case.
Regarding Mr. Conley's contention that he should have received a new sentencing hearing, arguably this court's case law that limits habeas corpus to situations in which either the trial court lacked jurisdiction or the judgment is facially invalid precludes giving Mr. Conley this relief. However, it is clear that the statutory authority for habeas corpus is much broader; it allows the writ to issue if a person is imprisoned without lawful authority. Ark. Code Ann. § 16-112-103(a)(1).
With perfect hindsight, I can see that the relief we granted in the Rule 37 case was unjust and wrong. While it may have been tempting to "split the baby," our disposition completely ignored the dynamics and realities of a trial. Simply dismissing the paraphernalia and marijuana counts was unjust to both the State and to Mr. Conley. The grant of a new trial was the proper remedy.
Our decision to simply dismiss those counts denied the State a chance to reopen the case and provide additional evidence to link Mr. Conley to the contraband. This is the very reason why we require specific directed-verdict motions before we consider challenges to the sufficiency of the evidence on direct appeal. When a specific directed-verdict motion is made at trial and the State offers no more proof, it is logical that the State has no other evidence to submit. However, in Mr. Conley's case, his trial counsel failed to raise a specific directed-verdict motion, so the State was not put on notice of any deficiency in its case.
Our decision was also unjust to Mr. Conley. While he did get his ninety-year sentence reduced to sixty years, it does not diminish the fact that he nonetheless received a 60-year sentence for selling $ 100 worth of narcotics that was based at least in part on the jury's consideration of evidence of crimes that this court later dismissed. The former is a violation of the Eighth Amendment and the latter a violation of due process.
In his habeas petition, Mr. Conley quoted the following instruction that the circuit judge read to the jury at the start of the penalty phase of his trial:
Ladies and gentlemen, members of the jury, you have found Vernell Conley guilty of Delivery of a Controlled Substance Crack Cocaine, Possession of a Controlled Substance Marijuana, and Possession of Drug Paraphernalia. The law provides that after the jury returns a verdict or verdicts of guilt but before it sentences the State and the Defendant may present additional evidence to be considered by the jury in its deliberations on sentencing. In your deliberations on the sentences to be imposed you may consider both the evidence presented in the first stage of the trial where you rendered verdicts on guilt and the evidence to be presented in this part of the trial. You'll now hear evidence that you may consider in arriving at appropriate sentences.
It is virtually beyond dispute that the dismissed counts affected the jury's sentence because the circuit judge told the jury to consider the evidence in support of those counts. It is a well-established legal principle in Arkansas law that jurors are presumed to comprehend and follow court instructions. Kelly v. State , 350 Ark. 238, 85 S.W.3d 893 (2002). How much the marijuana and paraphernalia counts contributed to the jury's decision to give Mr. Conley sixty years for selling $ 100 worth of crack can never be known. I can think of no more fundamental aspect of due process than that a jury's decision be based on relevant evidence. A flawed trial process produces unjust results that go beyond the question whether the defendant "did it." The State has no interest in an excessive sentence. It is common knowledge that we spend three times more money to keep a prisoner in the penitentiary than we require our schools to spend to educate a child in a public school.
In my view, Mr. Conley is also wrongly imprisoned on a sentence that is so disproportionate as to violate the Eighth Amendment. The majority has apparently failed to recall that Jackson v. Norris , 2013 Ark. 175, 426 S.W.3d 906 ( Jackson Il ), which Mr. Conley cites, is a habeas case. It arose on remand after the Supreme Court reversed Jackson v. Norris , 2011 Ark. 49, 378 S.W.3d 103 ( Jackson I ) in Jackson v. Arkansas , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), a companion case to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). As in the case before us, Jackson I disposed of Jackson's Eighth Amendment challenge stating, "Jackson has failed to allege or show that the original commitment was invalid on its face or that the original sentencing court lacked jurisdiction to enter the sentence. We hold that the circuit court's dismissal of the petition for writ of habeas corpus was not clearly erroneous." Jackson I , 2011 Ark. 49, at 5, 378 S.W.3d at 106. Inexplicably, this court continues to cite and rely on the same rationale that the Supreme Court of the United States has expressly rejected in habeas cases.
The Supreme Court's Eighth Amendment jurisprudence has long required that the punishment for a crime "should be graduated and proportioned to [the] offense." Weems v. United States , 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). This proportionality analysis has been at the heart of the Supreme Court's decisions in Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller , 567 U.S. 460, 132 S.Ct. 2455.
The writ of habeas corpus is one of the cornerstones of Anglo-American jurisprudence. It is expressly protected by the Arkansas Constitution. Ark. Const. art. 2, § 11. As such, this common-law privilege is greater than our flawed case law, which has been overruled, albeit sub silentio, by the Supreme Court of the United States. Miller , supra. I would reverse and remand this case to the circuit court for further proceedings.
I dissent.
The circuit court also sentenced Conley for an earlier delivery charge to an additional term of eighty-four months to be served consecutively to the other three sentences. The jury did not decide that sentence and it is not at issue in this appeal.
Conley filed a previous habeas petition in Jefferson County, but that petition was dismissed when Conley transferred to a prison unit in a different county. | [
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WAYMOND M. BROWN, Judge
Appellant John Williams appeals from the April 18, 2017 amended divorce decree filed by the Montgomery County Circuit Court. The decree granted appellee Patricia Williams a divorce from bed and board, permanent alimony in the amount of $1,100 a month, and a marital car that appellant was ordered to pay for until both the marital home and RV were sold. The decree also prevented the parties from returning to the court for a period of five years to seek modification of the permanent alimony. On appeal, appellant contends that (1) the trial court's award of permanent alimony was an abuse of discretion, (2) the trial court's prevention of the parties from moving to modify the alimony award for five years is contrary to Arkansas law, and (3) the trial court's refusal to enforce the parties' binding agreement regarding the Mazda car payments and alimony was an abuse of discretion. We reverse in part, and reverse and remand in part.
The parties met each other through an online dating site called TAG in January or February 2009. At that time, appellant had just completed a deployment in Iraq and was stationed in Georgia as an IT security specialist and warrant officer for the United States Army. Appellee had a business cleaning residential and commercial properties which she had owned since 1993. Appellant was subsequently transferred to Fort Bliss in El Paso, Texas, and appellee joined him around July 2009, closing her cleaning business. They lived together in El Paso and were married on December 28, 2009. The parties lived in Texas approximately two and a half years, and appellee worked as a cosmetology instructor for a couple of months while there. The parties moved to Augusta, Georgia, in 2011 when appellant was sent to officer training there. After training, appellant was transferred to Tennessee. Appellee worked several months as a cosmetology instructor while in Tennessee. Appellant underwent hip surgery in 2012, and he retired in February 2013. The parties moved to California after appellant's retirement because he was unhappy with the service he was receiving from the VA in Tennessee. Appellee flew to Tennessee while appellant was receiving services in California to get appellant's medical records and to downsize their home. They lived in California for about a year and then returned to Tennessee. They subsequently sold their home, packed up their RV, and moved to Arkansas. Appellee helped clean cabins and haul "wood and stuff" after she moved to Arkansas. Appellant underwent back surgery in November 2015. Appellant left appellee on April 10, 2016, and moved back to California.
Appellee filed a complaint and subsequently an amended complaint for divorce, alleging general indignities. Among other things, appellee requested temporary and permanent alimony, temporary possession of the marital home and her vehicle, that her health insurance be kept current, equitable distribution of the parties' debts and assets, and that the parties' real property be sold and the proceeds divided equally. Appellant filed an answer to appellee's amended complaint and a counterclaim for divorce. A temporary hearing took place on June 13, 2016, and the court entered a temporary order on June 24, 2016, in which it found that appellant's income was the sole income for the family and that he should pay appellee $1,100 a month until the final hearing. The court ordered appellant to pay the parties' vehicle and medical-insurance premiums and the loan for the purchase of the marital home. Appellant was also ordered to return the car to appellee and to retrieve the truck and motorhome. It forbade contact by the parties pending the final hearing.
The final hearing took place on January 17, 2017. Appellee's testimony traced the above evidence concerning how she and appellant met, when they were married, the number of times they moved during the marriage, appellant's surgeries, appellant's retirement from the Army, and when the parties separated. Additionally, she testified that the parties found a little trailer in Arkansas and that she went back to Tennessee to retrieve their belongings. She stated that as she was lifting the dolly up off the back of the motorhome, she tore the muscles away from her chest cavity. She also stated that she had been having problems with her back for which she was treated. She testified that she had bulging discs in her back and a fracture in one of those discs and the joint in the base of her spine. However, she stated that she receives steroid shots for this issue. She said that she suffers from both degenerative arthritis and degenerative disc disease. Appellee stated that her back pain began around 2014 but that it got progressively worse over time. She said that she takes medication for anxiety, high blood pressure, thyroids, nightmares, depression, and pain. She testified that she had no income other than the temporary support appellant was ordered to pay. She denied having any savings, but testified that there was $1,300 in her checking account because appellant had just made his support payment. She stated that she did not have any plan for the future.
On cross-examination, appellee stated that appellant had no plans of leaving the Army when they were married. She said that at the end of 2014, her back pain prevented her from doing the things she wanted to do. She denied working in 2014 or after that time. However, she subsequently admitted that between July and August 2015, she helped clean cabins. She stated that she was forty-five when she married appellant and that she had no retirement at that time because she lost everything in the stock-market crash of 2008. She testified that she was previously married for five years but that she did not receive retirement or any other benefits from that marriage. However, she stated that she made a lot of money. She said that she had filed for Social Security Disability benefits in May 2016 but had been denied. She stated that she appealed that denial and was waiting on the results of that appeal. Appellee admitted that appellant is disabled and unable to work.
On redirect, appellee stated that she was not physically capable of working due to the unbearable pain in her back. She said that she cannot stand or sit long, cannot sweep, and cannot vacuum without taking pain medicine and having to lie down.
Dr. Paula Mercer testified that she is a mental health therapist and that she has treated appellee at Ouachita Behavioral Health and Wellness. She stated that appellee had been diagnosed with PTSD. She said that appellee can improve but that it would take some time. She opined that it was not possible for appellee to currently hold down a job due to the PTSD. She also acknowledged that appellee suffers from back issues.
Dr. Mercer testified on cross-examination that she began seeing appellee on August 31, 2016. She stated that she could not say 100 percent that appellee did not suffer from PTSD before marrying appellant.
Sharon Dyer testified that she used to be appellee's neighbor and had known appellee for seven or eight months. She stated that appellee came to her about a month after appellant left and was hysterical and afraid of being alone. She said that she moved in with appellee for over two months and noticed that appellee would break down each time she received word from anyone about appellant. She stated that appellee was slowly improving but that she still breaks down every time something comes up about the divorce. She testified that appellee was on a lot of medicine. She stated that there was no doubt in her mind that appellee suffers from both mental- and physical-health problems.
On cross-examination, Dyer stated that during the time the parties lived together, she never saw appellant be violent toward appellee, raise his voice, or say something out of the way to appellee.
Cella Green testified that she was a teacher and was familiar with both appellant and appellee. She stated that appellee's "anxiety level has gone through the roof" since appellant left. She said that appellee was always worrying about appellant's well-being. She testified that some days appellee cannot get out of the bed due to either physical pain, emotional pain, or both. Green stated that appellee's physical health had deteriorated since they first met in 2015.
On cross-examination, Green stated that appellant had discussed his PTSD, anger issues, and refusal to take medications in her presence. However, she denied ever seeing appellant act physically violent. She opined that the parties' separation triggered appellee's emotional issues. She stated that she saw appellee ride a four-wheeler before the parties were separated.
Appellant testified that he was honorably discharged from the Army in February 2013. He stated that appellee was engaging in physical activities as late as 2015. He said that when they lived together in Arkansas, appellee would ride the four-wheeler regularly and dig for crystals around the property through April 2016. He stated that he had no knowledge of appellee receiving treatment for her back in 2015 and that during that time she was walking up and down the hill as exercise to help get appellant's back and body back in shape. However, he stated that prior to him leaving in April 2016, he noticed appellee was in a lot of pain when the doctor was realigning her back. He said that he could not say that he had never been physically violent towards appellee but that he had also had to defend himself from blows administered by her. He testified that during the marriage, appellee had issues with mental or emotional stability and that she would yell, curse, and destroy things. He stated that he was unaware if he gave appellee a cause to be fearful of him. He said that on the day he left, appellee indicated that she was planning on working at the Deli, a little shop down the street from where they were living. He stated that they never had a discussion about appellee not being able to work. He asked the court to deny appellee's request for alimony. However, he wanted the property divided equally.
On cross-examination, appellant stated that he received a restraining order against appellee. He admitted that he had been married two other times, and stated that appellee had also been married twice before him. He stated that appellee worked hard taking care of him and helping with his rehab after his surgeries. He testified that his total net monthly income is $6,506.56. He also outlined his total monthly expenses. Appellant stated that he was diagnosed at 70 percent PTSD through the VA.
After the conclusion of appellant's case, appellant withdrew his complaint for divorce and appellee amended her complaint for absolute divorce to a request for a divorce from bed and board. Appellant waived corroboration. The parties reached an agreement as to the property and the stipulated agreement was read into the record. The following pertinent colloquy took place:
MS. SMITH : The parties own a 2002 Dodge Dakota truck as well as a Mazda CX5 car and a 1999 Holiday Rambler Endeavor motorhome as well as a mobile home and 2.25 acres in Story.
APPELLANT : Five acres in Story.
MS. SMITH : Five acres in Story. Some acreage in Story. The real estate will be listed with Pride Realty for $60,000.00 for a period of six months. If the property sells, the proceeds will go first to pay off the mortgage on the home or the loan associated with the home. And, then the balance of the proceeds from the sale of the home and real estate will be divided equally between the parties. Mr. Williams will sell the 2002 Dodge Dakota as well as the motorhome and dolly and the parties will, through counsel, agree to the price on those things and when money is received for them, that money will be split equally between the parties. Mr. Williams will keep his coin collection and tools. Ms. Williams will have all of the items left in the marital home as her personal property. She will also retain the Magrual gun, her cat, and the Rainbow vacuum cleaner. Mr. Williams['s] Track 26 speed bicycle is at the house. Between counsel we will figure out some way to get that to him in California. And, I believe that is it as to property, Your Honor.
MR. GRAHAM : That is correct your honor but there is also a 2015 Mazda CX5 that has $21,000.00 still owed on it, Your Honor. We had discussed that-did she agree?
MS. SMITH : Ms. Williams would like to keep the car. She does not presently have any income to pay for it. If she receives alimony from the Court, she would like a portion of her alimony payment to make that car payment so that she can keep the car and then once the car is paid off, then it will just be straight alimony after that, Your Honor.
MR. GRAHAM : Otherwise the parties sell it and pay off the debt.
MS. SMITH : Ms. Williams, did you hear the stipulations that we entered into the record and is that your agreement?
APPELLEE : Yes.
MR. GRAHAM : Mr. Williams, did you hear the stipulation?
APPELLANT : Yes.
MR. GRAHAM : And, are you in agreement with that?
APPELLANT : Yes.
THE COURT : All right, now, I am going to take the issue of alimony under advisement. I will issue a decision, you will get it in the next couple of weeks. I do not know, since this is not an actual final decree of divorce other than just a divorce from bed and board, you want to wait preparing the final decree until you get my decision on the alimony?
MS. SMITH : I will, Your Honor.
THE COURT : Is that all right, Mr. Graham?
MR. GRAHAM : That is fine.
The court issued a letter opinion on January 24, 2016, granting appellee $1,100 in alimony "for the next five (5) years." The opinion indicated that appellant had a net monthly income of $6,506.56 ($1,772.66 retirement, $3,068.90 VA disability, and $1,665 social security) with monthly expenses totaling $5,299.92. Appellee's counsel was responsible for preparing the final order. Prior to preparing the order, appellee's counsel wrote a letter to the court asking it to clarify a portion of the letter regarding its ruling on the matter. In the letter, she asked that appellant be required to make the temporary payments he was previously making until the marital house and RV were sold. She also asked the court to reconsider the amount of appellee's alimony award and adjust it upward to reflect the decrease in appellant's monthly expenses once the RV and home are sold.
The court responded by letter on January 31, 2017, indicating that it did not address the issue of continued payments of the marital debts because it was not asked to do so. However, it stated that appellant would be responsible for paying the automobile and house payments until the house and RV were sold. It also indicated that appellant would remain responsible for the car insurance and appellee's health-insurance premiums. It declined to grant appellee's request to adjust appellant's alimony payments maintaining that the " 'resulting increase' does not factor in any future potential equity the parties may receive, if any, from the sale of the marital assets or potential benefits [appellee] may realize if she is successful on her social security disability claim on appeal."
On February 10, 2017, appellant's counsel filed a letter with the court also asking the court for clarification concerning the marital residence and the vehicle in appellee's possession. The letter indicated that appellant wanted: credit for the equity built in the home between the final hearing and sale; appellee to be forced to decide now whether she wanted to keep or sell the vehicle in her possession, and if she kept the car, that appellant receive credit for the car payments that come out of his account toward the alimony granted to appellee; and a time limit be placed on the parties to sell the property on the open market. Appellee's attorney filed another letter on February 17, 2017, seeking a hearing to clarify issues both parties were having understanding the court's ruling.
A decree of divorce from bed and board was filed on March 16, 2017. An amended decree of divorce from bed and board was filed on April 18, 2017. It stated in pertinent part:
4) Upon the sale of either the marital home or the RV, the plaintiff will have the option of retaining the marital car and assuming the debt thereon or, she may elect to sell the car and purchase something else with the proceeds of the sale of the RV or the marital home.
....
6) The defendant shall pay the plaintiff the sum of $1,100.00 dollars monthly for spousal support[.]
7) The defendant shall also continue paying the payment associated with the marital home, the car, the plaintiff's medical and dental insurance, as well as the vehicle insurance, all of which were shown in his affidavit of financial means, which was the basis for the calculation of the spousal support. All ordered payments shall be paid until both the home and the recreational vehicle are sold.
....
14) This court retains jurisdiction over this matter and after a period of five years, either party may return to court for consideration of any intervening factors which may warrant a modification of the defendant's spousal support obligation.
Appellant filed a timely notice of appeal. This appeal followed.
Appellant's first argument is that the trial court's award of permanent alimony was an abuse of discretion. Appeals of domestic-relations proceedings are reviewed de novo. The decision to grant alimony lies within the sound discretion of the circuit court and will not be reversed on appeal, absent an abuse of discretion. There can be no abuse of discretion, and a circuit court's decision regarding these issues cannot be overturned, unless it can be demonstrated that it exercised its discretion improvidently or thoughtlessly without due consideration.
An award of alimony is not mandatory but rather is discretionary, and the circuit court's decision regarding any such award will not be reversed on appeal absent an abuse of that discretion. This court has recognized that a circuit court is in the best position to view the needs of the parties in connection with an alimony award. The purpose of alimony is to rectify the economic imbalance in the earning power and standard of living of the divorcing parties, in light of the particular facts of each case. The primary factors are the financial need of one spouse and the other spouse's ability to pay, but other factors are the circumstances of the parties; the couple's past standard of living; the value of jointly owned property; the amount and nature of the income, both current and anticipated, of both parties; the extent and nature of the resources and assets of each party; the amount of each party's spendable income; the earning ability and capacity of both parties; the disposition of the homestead or jointly owned property; the condition of health and medical needs of the parties; and the duration of the marriage. The need for flexibility outweighs the need for relative certainty in assessing alimony. If alimony is awarded at all, it should be an amount that is reasonable under all the circumstances.
Here, we hold that the court's order granting appellee $1,100 a month in what appears to be permanent alimony is unreasonable under the circumstances. There is no doubt that appellee has a need for alimony or that appellant has the ability to pay something to appellee. However, the amount the court ordered appellant to pay appellee is unreasonable given the fact that after his monthly expenses are taken care of, he is left with $1,206.64 from which he has to pay appellee $1,100 in alimony, leaving appellant with only a little over $100 after this payment. Other factors point to a reversal of this award also: (1) the parties lived a rather modest lifestyle in an RV and motorhome; (2) the marital home and RV were ordered to be sold and each party will equally split the proceeds; (3) appellant has a fixed income that is unlikely to change in the future; however, appellee has applied for disability and has appealed that decision so there is a possibility that she will receive disability payments in the future of her own; (4) both parties are going to share equally in the money from the sale of the RV and motorhome; (5) there is evidence that neither party is able to earn any income; (6) the jointly held property is scheduled to be sold and the proceeds divided so no one party will receive a windfall of the money; (7) both parties have bad health and medical needs and appellant is responsible for paying for appellee's medical insurance until the marital property is sold; (8) the parties were only married for six years and this was the third marriage for both of them. Based on this evidence, the court's alimony award was not reasonable and was an abuse of discretion. To the extent that appellant argues that the trial court should have awarded appellee rehabilitative alimony, that issue is not preserved for our review. However, we reverse the court's award of permanent alimony and remand for the court to issue an order consistent with this opinion. In doing so, we are not foreclosing the court from considering whether appellee is entitled to some other form of alimony.
Next, appellant argues that the court's order preventing the parties from moving to modify the alimony for five years is contrary to Arkansas law. Appellee acknowledges that the court erred in this respect but contends that the error was harmless. We disagree that this was harmless error. Court-ordered alimony is always subject to modification. Modification of an alimony award must be based on a significant and material change in the circumstances of the parties, and the burden of showing such a change in circumstances is on the party seeking the modification. Thus, the court abused its discretion in ordering the parties to wait five years before they could seek to modify the alimony award. Accordingly, we reverse.
Finally, appellee argues that the court's refusal to enforce the parties' binding agreement regarding the Mazda car payments and alimony was an abuse of discretion. We agree. Oral stipulations made in open court that are taken down by the reporter and acted upon by the parties and court are valid and binding. Such stipulations are in the nature of a contract. It is not necessary that an agreed statement of facts, admitted by the parties to be true in open court, should be signed by the parties or their attorneys. Contractual stipulations affect the subject matter of the lawsuit. They deal with the rights or property at issue and are styled stipulations only because they occur in connection with the litigation. Here, the parties entered into a contractual stipulation about the disposition of the car in appellee's possession, which affected the marital property at issue. Based on that stipulation, if appellee was awarded alimony, a portion of that alimony was to be used to make the car payment until the car was paid off. There was no agreement that appellant was to pay appellee alimony and pay for the car separately. Therefore, the court abused its discretion by requiring appellant to pay alimony and for the car when that is not what the parties agreed to. Thus, we reverse and remand this issue. However, we note that the agreement only comes into play if, on remand, the court decides that appellee is entitled to some sort of alimony.
Reversed in part; reversed and remanded in part.
Gladwin and Whiteaker, JJ., agree.
Appellee received a cosmetology license in 1983 and kept it current until 2014; she also had an instructor's license which she obtained while in Texas.
Appellant started developing health problems during the first year of his marriage to appellee.
This information came from appellant's affidavit of financial means. At the hearing, he indicated that he had incorrectly calculated his expenses at $18,600 because he included the annual expense of certain things instead of dividing them by twelve. Appellee's affidavit showed that she had a net income of $0, $500 in cash, and monthly expenses of $2,505.
The letter states "appellant's request" but it is apparent that the court was addressing appellee's request.
Wadley v. Wadley , 2012 Ark. App. 208, 395 S.W.3d 411.
Taylor v. Taylor , 369 Ark. 31, 250 S.W.3d 232 (2007).
Smithson v. Smithson , 2014 Ark. App. 340, 436 S.W.3d 491.
Id.
Id.
Id.
Id.
Id.
Id.
Nelson v. Nelson , 2016 Ark. App. 416, 501 S.W.3d 875.
Berry v. Berry , 2017 Ark. App. 145, 515 S.W.3d 164.
Linehan v. Linehan , 8 Ark. App. 177, 649 S.W.2d 837 (1983).
Id.
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THE COURT : Where is Ms. Eneks, Mr. Huffman?
MR. HUFFMAN : I don't know, your Honor.
THE COURT : I don't believe you. I believe you told her to leave. Did you tell her to leave?
MR. HUFFMAN : I told her to go get [inaudible].
THE COURT : You told her to leave because you thought she'd be a witness in this case, didn't you?
MR. HUFFMAN : I thought it was possible they would try to.
THE COURT : And anything she might say would probably be contrary to what you're urging me to do, wouldn't it?
MR. HUFFMAN : I didn't want her put on the spot by anybody if she wasn't subpoenaed.
The circuit court then continued the change-of-custody hearing for a later date so that the transcripts from the November 3, 2016 hearing could be obtained. The circuit court also set a show-cause hearing for March 16, 2017, to address whether Huffman and Eneks should be held in contempt for hindering or interfering with the circuit court's proceedings in this case.
At the show-cause hearing, the circuit court entered two court exhibits: (1) the transcript from the March 2, 2017 hearing, and (2) the courthouse security footage from March 2, 2017. The circuit court observed that the footage showed Huffman signaling a "non-verbal cue" to Eneks shortly before the Dowdy hearing, Eneks then leaving the courtroom and driving away from the courthouse, and Eneks returning to the courthouse after Huffman sent her a text message near the end of the Dowdy hearing.
DHS called Ms. Jenson, DHS's area director, as a witness at the show-cause hearing. Jenson testified that it is DHS agency policy for the area director to give the agency's position when the caseworker and the supervisor have differing opinions, that she had reviewed the Dowdy case file before the March 2, 2017 change-of-custody hearing and that she would have been ready to testify as to DHS's position that day had she been called. In response to questions from the court, Jenson testified as follows:
THE COURT : So did I understand you to say that you were here to testify because there was a disagreement in the agency about what the position of the agency was?
MS. JENSON : I think that the workers and supervisors had had some differing opinions over the course of time in this case. And the position of the agency was that this was not an appropriate placement for the children based on his history.
THE COURT : And one of those employees of the agency that might have a different opinion was Ms. Eneks. Isn't that correct?
MS. JENSON : Yes, sir.
Ms. Eneks also testified at the show-cause hearing. Eneks testified that when there is a disagreement between a caseworker and a supervisor, the agency meets and decides who would be the best representative at court. Eneks also testified, "No, I have not recommended anything that contradicted the opinion of the Department in this case. No, I did not at any time recommend or agree that placement should be made with the grandparents." It is unclear whether Eneks was suggesting that she had never held an opinion contrary to DHS's position in this case, or that she simply had not previously submitted this recommendation to the court on behalf of DHS as its designated representative, "recommendation" being a term of art in dependency-neglect and other child-welfare cases in which DHS is typically the moving party.
On cross-examination, Eneks was asked, "Were you under the impression from your supervisor and your attorney that you were to leave the courtroom?" Ms. Eneks's attorney objected to this question, citing attorney-client privilege. The circuit court told Ms. Eneks she could answer if she wanted to, and she elected not to do so.
The show-cause hearing then concluded. From the bench, the circuit court held both Huffman and Eneks in contempt, ruling as follows:
To intensely engage in an activity to deprive the Court of relevant information in any case involving the welfare and best interest of minor children over which this Court has jurisdiction and which the DCFS has responsibility cannot be handled as a chess game. ... Ms. Eneks had been in court all that morning. She was instructed to leave by Mr. Huffman prior to this particular hearing and then immediately returned thereafter because he didn't want someone to put her on the spot. All of this strategy was for the ultimate purpose of having this court reach a less than fully informed decision on the placement of young children. ... There was an overt and conscious act by [Huffman] to deprive the court of relevant material testimony. Ms. Eneks had an opinion either currently or in the past that was opposite to that taken by Mr. Huffman or the department as to placement. To intentionally choose to exclude those relevant facts again deprives this court of relevant information to make the best decision for the children involved.
In its oral ruling, the circuit court made certain statements to the effect that DHS has a "greater responsibility" in child-welfare cases to present all relevant matters to the court, without specific regard to whether any such matter would be consistent with the DHS's stated position in a given case. No such statements are contained in the circuit court's written contempt orders; the written orders turn specifically on the circuit court's finding that Huffman and Eneks each "did intentionally engage in an activity to deprive the Court of relevant information in the above referenced case involving the welfare and best interest of the minor children." As for punishment, the circuit court required both Huffman and Eneks to complete eight hours of community service, to write a one-page treatise on the importance of presenting all relevant facts to the court in child-welfare cases, and to complete an additional hour of ethics CLE.
DHS now appeals to this court, asking us to reverse the circuit court's decision as to both Huffman and Eneks. DHS argues that Eneks was not under subpoena at the March 2, 2017 hearing; therefore, her departure from the courthouse, as well as Huffman's direction that she leave, cannot be considered contemptuous. DHS also argues that the circuit court's decision amounts to an impermissible "local rule" requiring DHS to present all relevant evidence in dependency-neglect proceedings, as opposed to requiring DHS to present only evidence that supports its stated position.
II. The Law of Contempt
On appeal from an order of contempt, this court views the record in the light most favorable to the circuit court's decision, and it will sustain the decision if it is "supported by substantial evidence and reasonable inferences therefrom."
McCullough v. State , 353 Ark. 362, 366-67, 108 S.W.3d 582, 585 (2003). On the subject of contempt, Arkansas law distinguishes between "civil" and "criminal" contempt, and between "direct" and "indirect" contempt.
A. Civil and Criminal Contempt
Contempt is divided into criminal contempt and civil contempt. Johnson v. Johnson , 343 Ark. 186, 197, 33 S.W.3d 492, 499 (2000). Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Id. at 197, 33 S.W.3d at 499. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. This court has often noted that the line between civil and criminal contempt may blur at times. Id. "[C]riminal contempt punishes while civil contempt coerces." Ivy v. Keith , 351 Ark. 269, 280, 92 S.W.3d 671, 677 (2002) (quoting Baggett v. State , 15 Ark. App. 113, 116, 690 S.W.2d 362, 364 (1985) (emphasis in original) ).
In determining whether a particular action by a judge constitutes a finding of criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Fitzhugh v. State , 296 Ark. 137, 138, 752 S.W.2d 275, 276 (1988). Because civil contempt is designed to coerce compliance with the court's order, the civil contemnor may free himself or herself by complying with the order. See id. at 139, 752 S.W.2d at 276. This is the source of the familiar saying that civil contemnors "carry the keys of their prison in their own pockets." Id. at 140, 752 S.W.2d at 277 (quoting Penfield Co. v. S.E.C. , 330 U.S. 585, 67 S.Ct. 918, 91 L.Ed. 1117 (1947) ) (quoting In re Nevitt , 117 F. 448, 461 (8th Cir. 1902) ). Criminal contempt, by contrast, carries an unconditional penalty, and the contempt cannot be purged. Fitzhugh , 296 Ark. at 139, 752 S.W.2d at 276-277.
State law sets out the criminal contempt power of the courts and the appropriate penalties (although, as set forth below, our constitution and caselaw make it clear that judges are not bound by this statute when contempt is committed in the court's presence):
(a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts and no others:
(1) Disorderly, contemptuous, or insolent behavior committed during the court's sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority;
(2) Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings;
(3) Willful disobedience of any process or order lawfully issued or made by it;
(4) Resistance willfully offered by any person to the lawful order or process of the court; and
(5) The contumacious and unlawful refusal of any person to be sworn as a witness and when so sworn a similar refusal to answer any legal and proper interrogatory.
(b)(1) Punishment for contempt is a Class C misdemeanor.
(2) A court shall always have power to imprison until its adjournment.
(3) When any person is committed to prison for the nonpayment of any such fine, he or she shall be discharged at the expiration of thirty (30) days.
(c) Contempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his or her defense.
(d)(1) Whenever any person is committed for a contempt under the provisions of this section, the substance of his or her offense shall be set forth in the order or warrant of commitment.
(2) Nothing in subdivision (d)(1) of this section shall be construed to extend to any proceedings against parties or officers, as for contempt, for the purpose of enforcing any civil right or remedy.
(e) A person punished for contempt under subsections (a)-(d) of this section shall, notwithstanding, be liable to an indictment for the contempt if the contempt is an indictable offense, but the court before which a conviction may be had on such an indictment shall, in forming its sentence, take into consideration the punishment previously inflicted.
Ark. Code Ann. § 16-10-108 (Repl. 2010).
B. Direct and Indirect Contempt
Both the Arkansas Constitution and the governing state statute distinguish between direct and indirect contempt. See Ark. Const. art. 7, § 26 ("The General Assembly shall have power to regulate the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience of process."); Ark. Code Ann. § 16-10-108 ; see also Allison v. DuFresne , 340 Ark. 583, 12 S.W.3d 216 (2000) ; Davis v. Merritt , 252 Ark. 659, 480 S.W.2d 924 (1972). Direct contempt is a contemptuous act "committed within the immediate presence of the Court." Merritt , 252 Ark. at 670, 480 S.W.2d at 930. Indirect contempt is contemptuous behavior committed outside the presence of the judge. An obvious example of direct contempt, apart from open misconduct in the courtroom, is when a party comes to court drunk. See Burradell v. State , 326 Ark. 182, 931 S.W.2d 100 (1996).
A court has inherent power to punish contemptuous behavior committed in its presence, without regard to the restrictions imposed by § 16-10-108(a). Id. at 185, 931 S.W.2d at 102. Summary punishment for contempt committed in the presence of the court is an inherent power reserved to the judiciary and cannot be abridged by legislation. Id. ; see also Hodges v. Gray , 321 Ark. 7, 901 S.W.2d 1 (1995). Furthermore, the appropriateness of a contempt finding does not turn on whether the contemnor subjectively intended to engage in conduct that would be considered contemptuous. Burradell , 326 Ark. at 186, 931 S.W.2d at 103.
III. Analysis
With regard to both Huffman and Eneks, the circuit court's punishment consisted of an unconditional penalty (eight hours of community service and a one-page paper). The law treats this as "criminal" contempt; accordingly, this case requires no assessment of whether Huffman or Eneks has since "purged" his or her contempt. Furthermore, with regard to both Huffman and Eneks, the conduct in question occurred in the presence of the circuit judge. The law treats this as "direct" contempt; accordingly, the circuit court's decision is not subject to the restrictions outlined in Ark. Code Ann. § 16-10-108(a), and the circuit court was within its power to punish the alleged contempt summarily. Burradell, supra. Accordingly, the only question remaining before this court is whether the circuit court's decision was supported by substantial evidence and reasonable inferences therefrom. McCullough, supra.
As to Huffman, the circuit court's decision is supported by substantial evidence and reasonable inferences therefrom. Huffman, an attorney, is an officer of the court, and he owed the court a duty of candor. He knew the subject matter that would be litigated at the change-of-custody hearing, and he knew Eneks's testimony would be highly relevant to that proceeding. It matters not that DHS had designated another individual as its representative for the hearing in question, or that Eneks was not under subpoena that day. There is no requirement that one subpoena an individual to court before one is allowed to call that individual as a witness in a given proceeding, and Eneks had been in court all day testifying in other dependency-neglect proceedings until Huffman directed her to leave. Huffman's equivocal response-"I don't know" -to the circuit court's inquiry as to Eneks's whereabouts, while perhaps not entirely false, was plainly less than forthright and inconsistent with Huffman's duty of candor.
DHS's argument on appeal- that the circuit judge's oral statements from the bench (to the effect that DHS is required to present all material evidence in dependency-neglect proceedings, even evidence inconsistent with its position) constitute an impermissible "local rule" -is unavailing. First, it is not clear from the limited record before this court that DHS raised this argument to the circuit court at any time. Second, the circuit court's written order did not rely on any such proposition, and our decision to affirm the circuit court's written order is not a comment on any such proposition. Third, even if the circuit court had relied on this proposition in its ruling, we would still affirm its decision because its ultimate conclusion is nonetheless correct. See Alexander v. Chapman , 299 Ark. 126, 130, 771 S.W.2d 744, 746-47 (1989) ("We will affirm the trial court's ruling if it is correct for any reason.").
In short, regardless of whether it was problematic that Huffman and DHS declined to present all evidence inconsistent with DHS's position (such as Eneks's testimony), it was certainly problematic that Huffman, undisputedly, took an affirmative step (directing Eneks to leave) to prevent the other parties and the court from presenting or considering such evidence. This action, which occurred directly in front of the circuit judge, was plainly indicative of prior coordination, and the circuit judge reasonably inferred as much. This all tended to disrupt the circuit court's proceedings and to impair the respect due to the circuit court's authority, and the circuit court's decision as to Huffman is affirmed.
We also affirm the circuit court's decision as to Eneks. While Eneks, unlike Huffman, is not an attorney, the circuit court specifically found as follows regarding Eneks's role in the March 2, 2017 hearing:
The Court finds that Ms. Eneks intentionally engaged in the act of leaving the Courtroom and Courthouse so she would not be subject to questioning in (this case). The Court finds, in the present matter, Ms. Eneks had been present in Court all that morning for the entire docket; that she was instructed to leave by Mr. Huffman prior to the hearing and then she immediately returned after because he didn't want her put on the spot about present or previous opinions as to the placement of the juveniles. Ms. Eneks' leaving and returning was of her own volition. She is an experienced employee of the Department and has served as a caseworker and currently is a foster care supervisor.
The circuit court's ultimate conclusion that "there was an overt and conscious act by Ms. Eneks to deprive the Court of relevant and material testimony" is supported by substantial evidence and reasonable inferences therefrom, including the testimony and statements from Eneks, Jenson, and Huffman, as well as the courthouse security footage from the March 2, 2017 hearing.
Without commenting on the propriety of a hypothetical, we note that this is not a situation in which, for example, Eneks had finished all her cases for the day and simply decided to go back to the office to finish other work, or something similarly innocuous. Here, the evidence indicates Eneks knew that DHS's specific aim was to keep her testimony out of the hearing, and Eneks directly advanced this tactic by knowingly and willingly removing herself from the courthouse at Huffman's signal. Eneks's and Huffman's prior coordination toward this end was apparent, and this court simply cannot condone such actions. Accordingly, we affirm the circuit court's decision to hold Eneks in contempt.
Affirmed.
Kemp, C.J., and Womack, J., and Special Justice Grant Fortson dissent.
Wynne, J., not participating.
Courts in Arkansas possess a broad contempt power to facilitate the enforcement of orders, maintenance of dignity, and preservation of authority. While statutes offer guidance in defining offending acts and outlining appropriate punishments, the contempt power is ultimately inherent to the court. It is precisely because of the contempt power's broad scope, however, that this court must take seriously its duty to police whether contempt penalties imposed are "supported by substantial evidence and reasonable inferences therefrom." See, e.g. , Perroni v. State , 358 Ark. 17, 25, 186 S.W.3d 206, 211 (2004). The majority's expansive view of contempt power here, however, opens the door for courts to use that power outside of its traditional role. Instead of maintaining the authority and dignity of the court, the power could be used to micromanage case presentation decisions that have historically been made by the parties and their attorneys. While I support a broad interpretation of the contempt power, I am concerned that this new expansion may lead to abuse. In finding contempt in this case, the circuit court made unreasonable inferences based on thin evidence; this court should reverse. I therefore must respectfully dissent.
At the most basic level, the alleged contemptuous act here is that Tony Huffman, an attorney with the Arkansas Department of Human Services (DHS), and Erica Eneks, a DHS caseworker, "colluded"-to use the loaded language of the circuit court-to have Eneks absent from the courtroom during a hearing in a dependency-neglect case. No one contends that Eneks's presence was required by law or by court order, nor had she been subpoenaed by any party. The majority also concedes that Eneks's presence was not required by court rule (choosing to disregard some ill-founded comments by the circuit court indicating that the court below believed the contrary). No one disputes that Lisa Jenson, DHS's planned witness for the initial hearing, was present and prepared to testify about DHS's ultimate recommendation in the case. It is further undisputed that when asked about Eneks's absence in the initial hearing, Mr. Huffman admitted that he had arranged for Eneks to leave. Stripped to the objective facts available at the end of the initial hearing, then, the circuit court was left with the bare observations that Huffman and Eneks conspired to do something they were allowed to do and then Huffman had the audacity to tell the truth about it. It was on this basis that the circuit court notified Huffman that he and Eneks would be subject to a later contempt hearing. Notably, even at this initial hearing, the circuit court had apparently already decided that "collusive" conduct indicative of "some sort of deceit" had occurred and that it was "obvious that what [Huffman] did was improper."
At the contempt hearing, the circuit court introduced into evidence security-camera footage that did nothing more than corroborate that Huffman had dismissed Eneks from the courtroom for a hearing in which she was not slated to testify. This is, of course, the action to which Huffman had already admitted. The closest any of the testimony at the contempt hearing came to confirming the circuit court's suspicion of ill intent was Jenson's affirmative response to the circuit court's question about whether Eneks "might have had a different opinion" than the agency's ultimate recommendation at some stage in the case. Even this equivocal support was undercut by Eneks's own unequivocal testimony that she had "not recommended anything that contradicted the opinion of the Department in this case."
I am mindful of the fact that circuit courts are better positioned than this court to assess the litigants and facts before them; that is why this court's standards of review on most discretionary issues-applying the rules of contempt among them-are quite deferential. If our review is to have any teeth, however, I cannot conclude that the circuit court's actions in this case were based on substantial evidence or reasonable inferences. For evidence to be substantial, it must "pass beyond suspicion or conjecture." Thompson v. State , 2016 Ark. 383, at 6, 503 S.W.3d 62, 66. The majority concludes that the circuit court satisfied this standard, seemingly crediting the leap of logic expressed by the circuit court at the close of the contempt hearing, that "Ms. Eneks had an opinion either currently or in the past that was opposite to that taken by Mr. Huffman or the department as to placement." Simply put, the evidence supporting that conclusion is thin, Eneks's own testimony contradicts it, and even assuming it were true, there is no law, rule, or norm that would support the idea that criminal contempt is the proper tool with which circuit courts should regulate the presence or absence of uncalled potential witnesses.
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BART F. VIRDEN, Judge
In this termination-of-parental-rights case, both parents, appellants Robin and Philip Hopfner, separately appeal the Madison County Circuit Court's order terminating their parental rights to JH. The Hopfners argue that the circuit court erred in its determination because termination of their parental rights was not in the child's best interest. We affirm.
I. Relevant Facts
On April 3, 2017, the Arkansas Department of Human Services ("Department") filed a petition for emergency custody and dependency-neglect regarding JH (10/16/14), NP (03/26/02), and JP (08/01/05). In the affidavit to the petition, the Department stated that on March 16, 2017, it received a report of child maltreatment and neglect, and family service worker Miranda Hall went to the Hopfners' home where she performed a drug screen on Philip, who tested positive for methamphetamine, amphetamines, MDMA, and THC. Philip did not appear to be intoxicated at that time. Robin failed to produce a sample and dropped the test cup in the toilet. Hall advised the Hopfners to remain drug free and to clean the home, and she told them that she would be back in a week to check in. When Hall returned, the home had been cleaned, and Philip tested negative for all substances. Robin again dropped her cup in the toilet but produced a clean sample later, and Hall suspected sample tampering. Hall advised the Hopfners that she would return in a week.
On March 27, Hall received word that Robin had become suicidal, and she went to the Hopfners' home where she found Robin distraught. Philip had driven away with JH without placing the child in a car seat. A marijuana plant was found in the home, and Philip was later arrested for manufacturing drugs and child endangerment. On March 29, 2017, Hall returned to the home and talked to Robin, who admitted using methamphetamine and that she used someone else's urine for the drug test. Robin stated that she knew Philip grew marijuana in the home and that she believed he had also used someone else's urine for the drug test. Robin explained that she had instructed JP and NP to lie to the Department. Hall obtained text messages between Robin and Philip and the two older children regarding methamphetamine addiction, selling drugs, leaving the children alone for long periods of time, and telling them what to say to the Department. The family had been involved with the Department since 2006; however, no true findings of abuse or neglect had ever been made against the Hopfners.
The circuit court entered an emergency order on April 3, 2017. In the order, the circuit court found that the children were dependent-neglected and that it was contrary to their welfare to return them to Robin's custody due to her drug use and pending criminal charges. Philip was incarcerated at the time of removal. On April 6, the circuit court entered a probable-cause order finding that due to both Philip's and Robin's drug use, Philip's current incarceration on felony drug charges and parole violation, and Robin's instability, it was in the children's best interest to remain in Department custody. Philip was allowed to have visitation, but Robin was ordered to have no contact with the children. The Department was ordered to provide services, including drug-and-alcohol assessment and counseling, and the Hopfners were ordered to remain sober, attend counseling, submit to assessments, obtain stable employment, maintain a stable home, demonstrate the ability to protect their children from harm, resolve all criminal issues, and remain in contact with the Department and their attorneys. The juveniles were placed with their maternal aunt and uncle, Jennifer and Timothy Williams.
On June 1, the circuit court entered an adjudication order in which the it found by clear and convincing evidence that JH, JP, and NP were dependent-neglected. Specifically, the court found that the Hopfners used illegal drugs and failed to ensure the children's safety. The court found that "mother and father exposed the children to a lifestyle of drugs," and the two older children had been diagnosed with PTSD. The court allowed the Hopfners to have visitation in a therapeutic setting with the approval of the children's counselors. The Hopfners were ordered to watch "The Clock is Ticking" video and obey all orders of the court. The goal of the case was reunification.
On August 16, 2017, Philip filed a motion for an emergency hearing regarding visitation with JH. On September 22, the court held a review hearing, and the pursuant order was entered on September 26. In the order, the circuit court noted that Philip had produced a certificate of completion of parenting classes and that Robin had completed four hours of parenting classes. The circuit court addressed Philip's August motion regarding visitation, finding that "Robin and Philip Hopfner placed these children in a living hell (see adjudication order). These 3 children are all suffering from post-traumatic stress disorder !" The court found that the Department had "acted to the detriment of the kids" by allowing JH to go on unauthorized, unsupervised visits with the paternal grandparent and "various family members under the guise of 'provisional' placement or other such 'policy' ". The circuit court found that Robin and Philip had complied with some of the its orders but found that custody could not be returned to the Hopfners because of the extreme trauma from which the children had not yet recovered and that neither Robin nor Philip had demonstrated the ability to safely parent the children. The circuit court ordered that neither parent was allowed visitation with the children.
On December 21, 2017, the circuit court entered a review order in which it found that the Department's custody should continue even though the Hopfners had complied with all the court orders and the case plan. The court found that the Hopfners had made some progress toward alleviating the causes of the children's removal but that the children were severely traumatized, and the Hopfners had not demonstrated that they could safely parent the children. The court found that the children were doing well in the Williamses' care.
On March 22, 2018, the Department filed a petition for termination of the Hopfners' parental rights, citing three statutory grounds: (1) that the children had been out of the custody of the parents for twelve months and despite Department efforts to rehabilitate parents and correct the conditions, the conditions that caused removal have not been remedied; (2) that other factors arising subsequent to the filing of the original petition demonstrated that the parents have manifested an incapacity or indifference to remedying the subsequent issues; (3) that the children had been subjected to aggravated circumstances, and there was little likelihood of reunification.
The Department also alleged that it was in the best interest of the children to terminate the Hopfners' parental rights. The Department asserted that the children were highly adoptable and that there was great potential for harm if the children were returned to the Hopfners' custody. Specifically, the Department contended that the children were emotionally unable to attend family therapy sessions and that their mental health would suffer if they were returned to their parents' custody. The Department also noted that JH expressed strong hostility toward the Hopfners' recently born child.
The permanency-planning order was entered on March 27, 2018. In the order, the court found that the parents had partially complied with the case plan and orders of the court; however, they had not made significant progress toward the goal of the case, they were not diligently working toward reunification, and the children could not return to their parents' home within three months of the permanency-planning hearing. The circuit court found that the Hopfners had not demonstrated the ability to safely parent the children and protect them from harm and that return to their custody was contrary to the children's welfare. The circuit court authorized a plan for adoption and found that termination was in the children's best interest. Counseling between NP and JP and Robin was ordered to cease, but the court allowed family counseling to continue between JH and the Hopfners, as recommended by JH's therapist.
On June 1 and June 27, the court held the two-part termination hearing. At the hearing, police officer Jeremy Riley testified that on March 18, 2018, he arrested Philip for third-degree domestic battery and terroristic threatening. Officer Riley explained that he responded to Robin's 911 call and that Robin told him that when she asked Philip to get up and take care of the new baby, he elbowed her in the back and told her she was dead. Robin refused to fill out and sign the witness-statement form, and the charges were nolle prossed.
Abby Hill, JH's counselor, testified that JH has PTSD symptoms, night terrors, aggressive behavior, and he was very traumatized and ducked his head when there was loud noise. Hill tied JH's trauma symptoms to the Hopfners' home environment, which included exposure to domestic violence and neglect. She explained that JH had made progress in therapy but that he still exhibited many symptoms of PTSD and could not be returned to the Hopfners' custody at that time. The counselor testified that one of the goals of JH's therapy was for the biological parents to participate in therapy and that if therapy with Robin were to end suddenly it would negatively impact JH's progress. Hill stated, "I do recommend today that those sessions continue. Regardless of what happens, I think currently, you know, my goal is to help heal JH and I think part of that is that it would continue with mom 'cause I think he is making progress by seeing her and going through that therapeutically." Hill stated that JH's sessions with Philip ended in March when he was arrested for domestic battery. She explained that before the cessation of therapy with Philip, JH had been anxious during sessions and his anxiety symptoms had improved when Philip stopped attending. Hill stated that she could not see a marked improvement "until it was just JH and Mom together." Hill opined that therapy with Philip should not be reinstated at that time, but she stated that "down the road I think it might be beneficial."
A second hearing was held on July 27, 2018. At that hearing, Carrie Nickles, JP and NP's therapist, testified that the girls were doing well and flourishing in foster care. They had expressed no interest in returning home, and Nickles stated that she believed it would be detrimental to the children if they were returned to the custody of the Hopfners. Both girls have PTSD, nightmares, and flashbacks. Nickles stated that the three siblings are very bonded to each other, and it would be detrimental to all three children if they were separated.
Robin testified at the hearing that she had wanted the girls to remain in the Williamses' custody; however, she believed that she could have a relationship with JH at that time. Robin opined that she did not "feel it's fair to him to make decisions based on the girls." Robin explained that JP and NP would be turning eighteen soon-in two years and five years-and they were going to have their own lives but that JH was young and she believed that it would be in his best interest to return to their custody. Robin asserted that she and Philip had made lasting changes. Robin downplayed her 911 call and Philip's arrest, explaining that the domestic-violence incident was due to sleep deprivation and stress related to having a new baby.
Philip also testified at the hearing. He stated that he and Robin were doing well, and they had changed. Philip expressed a desire to have a relationship with JH as well as JP and NP.
Bryn Bagwell, the CASA volunteer, testified that the children are very bonded to each other and that they are happy in their aunt and uncle's home. Bagwell praised Robin's progress and maternal instincts, and she opined that one day the family would be reunited but that it would not be any time soon. Bagwell stated that it was not time to reunite the family and that she feared the kids would regress if placed in the Hopfners' custody. Bagwell explained that the children were unable to trust the Hopfners to make good decisions about their care, and she believed that the children were "all ready to not have to think about this and be more settled in their lives. And they want to be together. They are a support for each other." Specifically as to JH, Bagwell opined that since February 2018, JH was more aggressive and had to be restrained from harming himself after counseling with Robin. She recommended termination of the Hopfners' parental rights.
Jennifer Williams, the custodial aunt, testified that the children are extremely bonded to one another and that she and her husband wanted to adopt all three children. She stated that if the therapist recommended contact between the Hopfners and the children at some point, then she would agree to allow contact.
Whitney Widner, the family service worker, testified that the children ask her "when is this going to be over" every time they see her. Widner also opined that she believed that the children would regress if returned to the Hopfners' custody. Widner stated that if the therapist recommended that the children continue visitation after the adoption, then the Department supported that decision but that it was in the best interest of the children to terminate parental rights.
The circuit court noted the Hopfners' compliance with the case plan and that they had "changed their lives around. They have made huge changes." The court stated that NP and JP were older and able to verbally articulate their reasons for not wanting to be with the Hopfners, but that JH was too young to do so and acted out instead. In closing, the court stated, "I think that once the girls continue in therapies, they'll be able to have contact with all three of their parents, hopefully. And so I have no doubt that in my mind, none whatsoever, that the rights of the parents should be terminated, that it's in the best interest of these children." The court then stated, "I am going to leave it up to the good discretion of the aunt and uncle about-work with the therapist when the kids reach a point, and that may be different for each child as to contact with the biological families." The court stated, "in light of the fact that the visits have gone so poorly-or JH's behaviors are so escalating after the family counseling with JH and mom, it's my understanding that the therapist-I had left it up to the therapist at the permanency planning hearing as to mom's therapeutic sessions with JH[.]" The therapist was sworn in, and she stated that "I would hope that he'd be able to continue in therapy and family therapy with Jennifer, the aunt." The court noted that when the aunt and uncle adopted the children, the Hopfners would become the aunt and uncle and JH would "still have that family connection." The court noted that it was not ordering no contact with the Hopfners.
The termination order was entered on September 11, 2018. In the order, the circuit court found that three statutory grounds supported termination: the aggravated-circumstances ground, the twelve-month-failure-to-remedy ground, and the subsequent-factors ground. The court found that Robin conceded to termination of her parental rights to JP and NP, but that the Hopfners contested the termination as to JH. The circuit court also found that termination was in the children's best interest and determined that it was likely that the children would be adopted, noting that the Williamses were interested in adopting the three siblings. The circuit court found there was potential for harm if the children are returned to the Hopfners' custody. The court determined that due to the Hopfners' former lifestyle the children have PTSD, and they expressed fear about being returned to their parents' custody. The circuit court also noted that over a year after the case was opened, there was a domestic disturbance between Robin and Philip, which was exactly the kind of ordeal from which the children were still recovering and would be traumatized by if they were returned to the Hopfners' custody. The circuit court found that (1) though the Hopfners mostly complied with the case plan, they were never able to demonstrate an ability to safely parent the children or keep them from harm; (2) the children were all very bonded to each other, and it would be counter to the best interest of the children to separate them; (3) the Department made reasonable efforts to provide services. Robin and Philip each timely filed a separate notice of appeal.
II. Standard of Review
We review termination-of-parental-rights cases de novo. Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2017); Dunn v. Ark. Dep't of Human Servs. , 2016 Ark. App. 34, 480 S.W.3d 186. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Vail v. Ark. Dep't of Human Servs. , 2016 Ark. App. 150, at 10, 486 S.W.3d 229, 234. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep't of Human Servs. , 96 Ark. App. 247, 240 S.W.3d 626 (2006). Credibility determinations are left to the fact-finder, here the circuit court. Schaible v. Ark. Dep't of Human Servs. , 2014 Ark. App. 541, at 8, 444 S.W.3d 366, 371.
III. Discussion
The Hopfners do not challenge the statutory grounds for termination found by the circuit court. They contend only that the circuit court's best-interest determination must be reversed because there is insufficient evidence supporting the potential-harm finding, namely that the court resorted to "mere speculation" in making the finding, that it treated the three children as an "amorphous group," and that because the children's permanency was not at risk, there was insufficient evidence that termination was necessary. The Hopfners' arguments are without merit, and we affirm.
In making a "best-interest" determination, the circuit court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Miller v. Ark. Dep't of Human Servs. , 2016 Ark. App. 239, 492 S.W.3d 113. The potential-harm analysis is to be conducted in broad terms. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. Credibility determinations are for the circuit court to make, not this court. Bridges v. Ark. Dep't of Human Servs. , 2019 Ark. App. 50, at 8, 571 S.W.3d 506.
When making the decision whether to terminate parental rights, the circuit court has a duty to look at the case as a whole and how the parent has discharged his or her parental duties, the substantial risk of serious harm the parent imposes, and whether the parent is unfit. Black v. Ark. Dep't of Human Services , 2018 Ark. App. 518, at 8, 565 S.W.3d 518, 523. Partial or even full completion of the case plan is not determinative of the outcome of the termination proceeding. Wright v. Ark. Dep't of Human Servs. , 83 Ark. App. 1, 115 S.W.3d 332 (2003). What matters is whether completion of the case plan achieved the intended result of making a parent capable of caring for the child; mere compliance with the orders of the court and the Department is not sufficient if the roots of the parent's deficiencies are not remedied. Lee v. Ark. Dep't of Human Servs. , 102 Ark. App. 337, 345-46, 285 S.W.3d 277, 282-83 (2008). The intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3) (Supp. 2013).
Both Robin and Philip assert that the circuit court ignored their progress such as their full compliance with the case plan, their ability to keep their newborn safe, and their successful family counseling; thus, the circuit court's potential-harm finding amounted to "mere speculation." The Hopfners direct our attention to termination cases in which we reversed the circuit court's best-interest determination. In Ivers v. Arkansas Department of Human Services , 98 Ark. App. 57, 250 S.W.3d 279 (2007), the father was getting inpatient drug treatment and had taken responsibility for his addiction, and we held that it was mere speculation for the circuit court to find that his past would necessarily dictate the future, especially considering his general compliance with the case plan. In Cranford v. Arkansas Department of Human Servs. , 2011 Ark. App. 211, at 10, 378 S.W.3d 851, 857, this court held that the circuit court's best-interest finding was clearly erroneous where there was no evidence of either parent physically abusing or harming the child or being a threat to do so in the future.
Both Ivers and Cranford are distinguishable from the instant case. Here, JP, NP, and JH had been diagnosed with PTSD from the domestic violence they were exposed to and from the severe neglect they experienced in their parents' custody. Neither the father in Ivers nor the parents in Cranford had ever subjected the children to an abusive or traumatic household, whereas the Hopfners had exposed the children to domestic abuse a "drug lifestyle," and "a living hell." Moreover, sufficient evidence supports the circuit court's potential-harm finding. The children's counselors, the CASA volunteer, the Department, and both Robin and Philip testified at the hearing that none of the children were ready to be returned to the Hopfners' custody because of the lingering anxiety-related issues stemming from the trauma they suffered while in their parents' care. The CASA volunteer and the children's counselors also noted that the three children were bonded to each other. Philip characterizes the circuit court's acknowledgment of this strong, meaningful bond between the siblings and its reliance on this bond as support for the potential-harm finding as erroneously viewing the children as an "amorphous group." In fact, the court relied on testimony from several witnesses that the children were extremely bonded due to the trauma they had suffered, and to separate them would be detrimental to their emotional health.
Also, Philip and Robin mischaracterize their "full compliance" with the case plan and cite this court to their ability to safely parent their newborn as support for their position; however, as recently as March 2018-nearly a year after removal-the police were called to the home, and Philip was arrested for third-degree domestic battery and terroristic threatening. The Hopfners attempted to downplay this incident, and Robin explained that the stress of having a newborn caused the incident; however, the court noted that exposure to domestic violence had partly caused the children's trauma, and the domestic-violence issue had not been resolved, despite almost a year of Department services and the fact that there was only one child in the home.
Philip and Robin also cite to the testimony of JH's counselor that continued therapy between JH and his parents would benefit him and that reunification of the family was assured. The Hopfners cited only the testimony that supports their argument. In fact, Hill testified that though she recommended continued counseling between JH and Robin, JH had not shown "marked improvement" until the counseling with Philip had ceased. Hill did not recommend that therapy with Philip be reinstated, and she opined that "down the road" therapy "might" be beneficial. Moreover, the CASA report submitted at the termination hearing set forth the following:
Since February 2018, J is not handling post-counseling sessions well. J is more aggressive (hitting and screaming) and has nightmares after sessions with his mother. J is head banging and wakes up crying after his sessions with his mother. In the evenings after sessions, J has had to be restrained to prevent from hurting himself and others. J is not responding well to therapy sessions with mom and CASA believes it would be in his best interest for these to be stopped.
The Hopfners ask us to reweigh the evidence. It is well settled that we will not reweigh the evidence on appeal, and credibility determinations are left to the circuit court. Newman v. Ark. Dep't of Human Servs. , 2016 Ark. App. 207, 489 S.W.3d 186. Furthermore, the Hopfners are incorrect that the court ignored their progress. The circuit court found that the Hopfners had complied with many of the court orders such as obtaining psychological evaluations, attending counseling, maintaining sobriety, and obtaining stable housing and employment. The court acknowledged the CASA volunteer's testimony that "mom's an amazing lady and she's just awed by what mom has done and Mr. Hopfner[.]" We find no clear error in the circuit court's determination that terminating the Hopfners' parental rights is in the children's best interest.
Philip separately argues that that their situation is comparable to one of the parents in Lively v. Arkansas Department of Human Services , 2015 Ark. App. 131, 456 S.W.3d 383 in which we reversed the termination of the father's parental rights because the children had a permanent home with their mother, their relationship with their paternal grandparents was a stable influence, and a no-contact order with their father had not been considered by the court. Philip also cites Cranford , supra , where permanency was not at issue because the child had a stable home in relative placement. Both of these cases are distinguishable from the instant case. Here, unlike Lively and Cranford , JH, NP, and JP all suffered extreme dependency-neglect that left them with PTSD and other trauma-related issues. Moreover, the circuit court noted that it was not placing a no-contact order on the parents for the pendency of the appeal. Lastly, the circuit court explained why it did not choose a less restrictive option than termination:
With respect to return home today of NP and JP and JH would not be in the children's best interest. Therapist, CASA, Ms. Widner all testified that it would be detrimental to return the girls to mom and Mr. Hopfner. I find that is clear and convincing. I find it to be very credible. I'd also note that by keeping this case open this long to give mom and dad the time they've been given has caused emotional distress, and permanency is the goal for children and what's in their best interest. I find that the Department, by clear and convincing evidence, has shown that the harm to placing these children, the two older ones and little JH, with mom and Mr. Hopfner, would be too great. And not only with respect to that, I find that the aunt hit the nail on the head where she said that these kids love all three of their parents. These children are stuck, and they need to move forward. And I believe that they'll reach a point, hopefully, the children, where they've healed enough with the trauma and stress that they will be able to have contact with Mr. Phillips, Mr. Hopfner, and Ms. Hopfner, but it's not today, and it's not gonna be any time soon.
For the reasons stated above, we affirm.
Affirmed.
Gruber, C.J., and Brown, J., agree.
It is unclear whether Robin is appealing the termination of her parental rights to NP and JP because although she refers to the termination of her parental right to the "children" in her brief at certain times, she limits her argument to the termination of her parental rights to JH. Because Robin offers no argument as to NP and JP, we hold that she has abandoned any argument as to the older children, and we do not address whether the circuit court erred in terminating Robin's parental rights to NP and JP. See Phillips v. Ark. Dep't of Human Servs. , 2018 Ark. App. 463, 560 S.W.3d 499.
Robin is the biological mother of all three children, and Philip is the biological father of JH and stepfather to NP and JP. NP and JP's father was incarcerated at the time of removal and is not a party to this appeal.
In the amended order, the circuit court also added Dwayne Phillips as NP and JP's father. | [
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N. MARK KLAPPENBACH, Judge
Appellant Ulrick Hillman was tried before a Miller County jury on a charge of rape. The jury convicted him, and he was sentenced to ten years in prison. On appeal, appellant challenges the sufficiency of the evidence to support the element of forcible compulsion against the victim. We affirm.
The standard of appellate review is well settled. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Estrada v. State , 2011 Ark. 3, 376 S.W.3d 395 ;
Moore v. State , 355 Ark. 657, 144 S.W.3d 260 (2004). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Smith v. State , 352 Ark. 92, 98 S.W.3d 433 (2003). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Moore , supra.
The criminal information charged appellant with rape, accusing him of engaging in sexual intercourse or deviate sexual activity with the victim, DS, by forcible compulsion. See Ark. Code Ann. § 5-14-103(a)(1) (Supp. 2017). "Forcible compulsion" means physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Ark. Code Ann. § 5-14-101(2) (Supp. 2017). The supreme court has defined the term "physical force" as any bodily impact, restraint or confinement, or the threat thereof. Ellis v. State , 364 Ark. 538, 222 S.W.3d 192 (2006). The test we use to determine if there was physical force is whether the act was against the will of the party upon whom the act was committed. Goodman v. State , 2009 Ark. App. 262, 306 S.W.3d 443. The existence of forcible compulsion does not depend on the quantum of force that is applied but rather on whether the act is consummated against the victim's will. Johnson v. State , 80 Ark. App. 79, 94 S.W.3d 344 (2002). A rape victim's testimony alone can constitute substantial evidence to support a rape conviction. Henson v. State , 2009 Ark. App. 464, 320 S.W.3d 19. The jury has the sole authority to evaluate the credibility of evidence and to apportion the weight to be given to the evidence. Starling v. State , 2016 Ark. 20, 480 S.W.3d 158.
The evidence in this case is reviewed here in the light most favorable to the State. The twenty-year-old female victim, DS, went to a nightclub around 11:00 p.m. with her friends. Appellant, a thirty-three-year-old man, was at the nightclub. DS knows appellant because he is the foster brother of her children's father. Appellant had been to her apartment and stayed overnight before with his foster brother. Appellant told DS that he was coming to her apartment when he left the club, but DS told him no. DS left the nightclub around 2:00 a.m., and she was admittedly drunk at that time. DS went home and went to bed wearing a t-shirt and panties; she left her television on, and she fell asleep.
DS was later awakened by the sound of someone banging on her door. She did not answer the door and went back to sleep. She later heard a window opening, but she was in a dream-like state and did not get up to check. DS was awakened around 4:00 a.m. by appellant, who was naked and getting into her bed. She asked appellant what he was doing there and how he got in, but appellant did not respond. She repeatedly told him to leave but he did not. DS testified that appellant climbed on top of her, pushed her on her back, forced her legs open, pulled her panties to the side, and vaginally penetrated her repeatedly with his penis. DS, who is 5 feet 2 inches tall and weighs 128 pounds, tried to fight and struggle, and she repeatedly told him to stop, but appellant pinned her arms down and told her to "just let him do it." Appellant finally got off her, got dressed, and eventually left. DS kept on the t-shirt and panties she had worn; she did not bathe.
DS contacted the police, who came to her apartment and took a statement from her around 8:30 a.m. Officers described DS as upset, and they saw that a window did not have a screen on it. DS told the officers that she had been intoxicated the night before, but she did not seem to the officers to be intoxicated at the time she was interviewed. She eventually told the officers that she knew appellant was the person who had raped her. DS was told to go to the hospital for a rape-kit examination.
The registered nurse who worked with DS at the hospital testified that DS told her that the suspect had lain on top of her, restricted her arms and legs, and penetrated her vagina with his penis multiple times, although DS did not think he had ejaculated. DS told the nurse that she struggled against her assailant. The nurse stated that DS was tearful and that she complained of soreness in her arms and legs. DS had no visible signs of injury or bruising. During the examination, vaginal swabs and cuttings of DS's panties were obtained to test them for the presence of DNA. DS never stayed at that apartment again.
The police called appellant that day, and he came to the police station and voluntarily gave a recorded statement at approximately 1:30 p.m. Appellant said that he knew DS, and he had heard that DS was accusing him of rape. Appellant admitted that he had gone to DS's apartment after he had left the nightclub. He said that he had consumed a few drinks but that DS was very intoxicated. According to appellant, the plan was for him to come to DS's apartment to eat with DS and her cousin. He admittedly had taken the screen off DS's window but claimed that DS had finally let him in through the door. At first, appellant denied having any physical contact with DS, but he later said that he had touched her buttocks under her panties; he denied touching her vaginal area. He vehemently denied having had sex with DS and described her as crazy. Appellant voluntarily provided a DNA sample.
Tests from the Arkansas State Crime Laboratory showed the presence of a component of semen in the panties and sperm in DS's vagina. Appellant and his male relatives could not be excluded as the source of the sperm.
Appellant argues that the circuit court erred in denying his motion for directed verdict in which he had argued that the State failed to prove "forcible compulsion." He contends that DS was very intoxicated that night, that she made demonstrably untrue statements in her testimony, and that there "is a complete absence of corroborating evidence which demonstrates any force was used on" her. Appellant points to the lack of objective evidence of physical trauma, noting the absence of evidence of swelling, bruising, or the like. Appellant does not persuade us that there was insufficient evidence of forcible compulsion to support the jury's verdict.
There is no requirement that there be scientific evidence of rape. See Breeden v. State , 2013 Ark. 145, 427 S.W.3d 5 ; K.B. v. State , 2017 Ark. App. 478, 531 S.W.3d 420. The victim's testimony, if believed by the trier of fact, is sufficient to establish appellant's guilt. Any inconsistencies in the victim's account of what happened are for the fact-finder to resolve, not our court on appeal. See Lowe v. State , 2016 Ark. App. 389, 500 S.W.3d 176 ; Brown v. State , 2009 Ark. App. 873, 2009 WL 4844677. We will disregard testimony that the fact-finder has found credible only if it is so inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ about it. Conte v. State , 2015 Ark. 220, 463 S.W.3d 686. Such is not the case here.
In reviewing this sufficiency challenge, we must view the evidence in the light most favorable to the State and must consider only the evidence that supports the verdict. Arnold v. State , 2018 Ark. 343, 561 S.W.3d 727. Under this standard of appellate review, we hold that there is substantial evidence to support the jury's finding that appellant was guilty of rape. For this reason, we affirm.
Affirmed.
Virden and Whiteaker, JJ., agree.
We point out that appellant's brief contains unnecessary materials in the abstract and addendum. The abstract contains approximately fifty pages relating to the admissibility of certain evidence and to a Batson challenge, none of which is necessary to decide the issue on appeal. Appellant's addendum also contains two motions in limine that are irrelevant to our analysis. We caution counsel to prepare future appellate briefs more carefully and in adherence to the Rules of the Arkansas Supreme Court and Court of Appeals. | [
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In support of his Brady claim, Davis attached to his petition copies of documents titled "agreed recommendation of punishment." The agreements specify that prosecutors would recommend that Frawley serve a two-year sentence in a regional-punishment facility (RPF), and that this punishment was to be served consecutively to other sentences that would be imposed in three separate pending criminal cases.
Davis asserts that by failing to disclose that Frawley would serve time in an RPF as opposed to the ADC as the prosecutor's comments suggested, the prosecution deprived Davis of additional impeachment evidence he could have used to discredit Frawley's testimony. Obviously, RPF time is a "sweeter deal" than ADC time, so if we assume the veracity and completeness of the attachments to Davis's petition, his petition establishes the first prong of Brady .
However, Davis's claim simply does not satisfy the prejudice prong of Brady ; the evidence would not have created a "reasonable probability" of a different outcome. A review of the trial transcript and introduced exhibits reveals that, after the perpetrators robbed the victim of her money and belongings (including her cell phone) and left her tied up in the woods, they drove off in the victim's green Mercedes. Nearly immediately after the victim was left in the woods, her cell phone was used to call Davis's mother at her residential address. There was no existing relationship between the victim and the defendant's mother nor any alternative explanation as to why the victim's stolen cell phone would be used to call the defendant's mother other than that the defendant took the phone and made the call. Another witness testified that a man she knew and another man named "Michael" picked her up in a green Mercedes matching the victim's vehicle on the night of the crime, and that the men had a "big wad of cash" with them. Moreover, the arresting officer testified that when he approached Davis, Davis told the officer his name was Kevin Alexander. After admitting his name was actually Michael Davis, Davis told the officer, without prompting, "I didn't do any of that stuff, and you can't prove it." When the officer responded, "what stuff," Davis replied, "I didn't do that stuff with that woman." The burden is on Davis to substantiate the merit of a Brady claim, which requires a showing of a reasonable probability of a different outcome. Mosley , 2018 Ark. 152, 544 S.W.3d 55. Davis fails to meet that burden in light of the additional evidence presented at trial.
Petition denied; motion moot.
The case numbers listed in the agreements in which it was recommended that Frawley receive consecutive sentences for the charged offenses are 60CR-98-851, 60CR-98-764, and 60CR-98-793. The agreements also seem to recommend a concurrent sentence for at least one count charged in case number 60CR-98-793.
It is unclear if any issue was ever made of a potential Miranda violation, but this evidence is certainly contained in the trial record. The arresting officer characterized Davis's statements as spontaneous, and the defense raised no objection. | [
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KENNETH S. HIXSON, Judge
Appellant Robert Glenn Brown appeals after he was convicted by a Pulaski County Circuit Court jury of rape and was sentenced to serve a total of 300 months' imprisonment. On appeal, appellant contends that the trial court abused its discretion in ruling that the Instagram messages and testimony about their contents were sufficiently authenticated to be admissible. We reverse and remand for a new trial.
I. Relevant Facts
In summary, appellant was charged with raping his daughter, L.B, who was less than fourteen years old at the time, in violation of Arkansas Code Annotated section 5-14-103 (Supp. 2017). Appellant lived in Texas with his current wife and nine children. Appellant is L.B.'s father. Appellant never had a father/daughter relationship with L.B. and had not seen or communicated with her for several years. L.B. and her mother, Janet Hurst, lived in Little Rock, Arkansas. Janet Hurst thought that L.B. needed a father figure in her life. Therefore, Janet contacted appellant in Texas via Facebook. Eventually, according to Janet, appellant and L.B. communicated via social media and telephone. Finally, in September 2014, appellant, upon Janet's invitation, visited L.B. and Janet. Appellant stayed at Janet's house for approximately a month. Janet testified that because she has another child and did not have a spare bedroom, appellant slept in the same bedroom and in the same bed with his then approximately twelve- or thirteen-year-old daughter. By all accounts the month-long visit generally went well. However, it was alleged that on the last night of his visit, appellant raped his daughter and then left to go back to Texas.
Apparently, thereafter, there was no communication between appellant and Janet Hurst or L.B. for two years. Janet Hurst testified that she routinely reviewed L.B.'s cell phone. In 2016, Janet found some recent Instagram messages on the phone. Those messages were allegedly between L.B. and appellant. In the string of Instagram messages, appellant allegedly confessed that he had raped L.B. two years earlier. Janet confronted her daughter with the Instagram messages and subsequently contacted the police. Thereafter, appellant was charged with rape.
Before trial, appellant filed a preliminary motion to determine the admissibility of the Instagram messages and their content at trial. Appellant admitted that the statements in those messages could be construed as a confession; however, he denied authoring the messages in question. He further maintained that the State had failed to provide any evidence linking him to the messages despite multiple subpoenas to various entities, including Facebook, internet-service providers, and Yahoo. Therefore, appellant argued in relevant part that the messages were inadmissible because they could not be authenticated under Arkansas Rule of Evidence 901 (2017).
At a preliminary hearing on appellant's motion, the State explained that it intended to introduce at trial screenshots of the 2016 Instagram messages that were obtained from L.B.'s cell phone. It alleged that these messages were exchanged between appellant and L.B. in 2016, two years after the crime had occurred and appellant had returned to his home in Texas. The State explained that Facebook, which owns Instagram, provided an IP address and a yahoo email address associated with the Instagram account in question. However, the internet-service provider for that IP address, Comcast, does not keep records past 180 days. Therefore, there was no electronic evidence linking the Instagram account to appellant. Nevertheless, the State argued that the similarities between the 2016 Instagram profile and a 2014 Instagram profile that L.B. alleged she had previously used to communicate with appellant in conjunction with the content of the messages themselves was sufficient authentication.
During the preliminary hearing, L.B. testified that in 2014, she communicated with appellant via an Instagram account and by telephone. L.B. testified that the messages she received in 2016 came from a different Instagram account. She testified that the 2014 account and the 2016 account had the same profile picture and contained the same quote "Family sticks up for family." L.B. further explained on direct examination that the 2014 account used the name Rob Brown Matoskah, and the 2016 account used the name Rob B/M with the username robbm00. Therefore, L.B. testified that she believed the account had belonged to appellant.
On cross-examination, L.B. admitted that she did not remember the name on the 2014 Instagram account. She additionally admitted that it was easy to create an Instagram account under any name and to use any picture and quotation that one would want during the creation process. Further, she admitted that anyone can see that information and copy that information if it is a public account. Thus, L.B. testified that based on her familiarity with the platform, if one knew or had access to an account name, photo, and quote, one could create another account with a similar username, same digital profile picture, and same profile quote. Moreover, she admitted that although she had not told anyone about the incident, she was the first one to raise the issue of rape in the 2016 exchanged messages.
The content of the 2016 Instagram messages is as follows:
ROBBM 00: Hey baby girl I miss u
[LB]: I don't want to talk to you
ROBBM 00: What are u still doing up u need to sleep u have school today
[LB]: Who are u.... Oh yeah I forgot about having a dead beat father out there
ROBBM 00: Shut up b* * * * Ima great father u don't know me so u can't judge me from a few small mistakes
[LB]: Exactly I don't even know my own dad ... Really u call rape a small mistake. You call leaving me when I was a baby a small mistake....
ROBBM 00: Yes and I'm sorry about that I'm about to go to prison for the rape charge and I'm sorry
[LB]: Really ur sorry wow ... If u throw a plate Does it brake (yes) If you say that you are sorry for breaking the plate does it fix the plate? ? ?
ROBBM 00: No but what does a plate have to do with this
[LB]: Dad I'm the plate!!!
ROBBM 00: Oh well I'm sorry
[LB]: All u ever do is apologize I don't want to hear it anymore I'm done with u ... I have lost everything I have nothing and I have no one nor anyone who loves me I don't care what u needed to tell me but I'm done I'm done I'm done I'm done I almost killed myself 2 different times I have this guy who I love with all my heart and I can't have him Bc he has moved on and so I feel stupid and so I feel stupid for still loving him but I can't stop this stupid heart of mine it can't ever get the hint when someone gives up on me
ROBBM 00: Well honey I love you
[LB]: Ur love makes me sick
[LB]: Please just leave me alone u were always good at that ...
ROBBM 00: Just go kill you self u would be better off dead u have nothing left to Live for go ahead end what no one cares about I bet no one would even notice you were gone I hope you die b* * * *
Appellant testified at the preliminary hearing that he had only one Instagram account, Brown RB8433, and that he did not have an Instagram account with the username Robbm00. In fact, he denied talking to his daughter on Instagram at all in 2016 and denied sending the messages quoted above. Moreover, appellant testified that his internet-service provider had been Bryce Broadband since 2013 or 2014 and further explained that Comcast does not provide service in the area of Texas where he lives. On cross-examination, appellant stated that he recognized the name "Matoskah." He explained that he had a business named Matoskah Tattoos and that the name was also on his Facebook page.
At the end of the preliminary hearing, appellant's counsel reiterated that there was no electronic evidence linking appellant to the account in question. Counsel further argued that even L.B. admitted that anyone can create an account with a similar name and picture. Moreover, counsel argued that nothing in the content of the messages was known only to appellant. Despite the fact that the State presented no evidence that linked appellant to the 2016 account except for L.B.'s testimony, the trial court denied appellant's motion and ruled that the evidence was admissible.
At trial, Janet testified that she and appellant have one child together, the victim L.B. She and appellant separated in 2004 when L.B. was approximately three years old, and she did not see him again until 2008. Janet testified that she contacted appellant in 2014 through Facebook, and appellant gave his phone number for L.B. to call him. According to Janet, appellant and L.B. talked on the telephone and through social media, and appellant visited from Texas in September 2014 for approximately a month. During appellant's visit, appellant shared the same bedroom and bed as L.B. since Janet explained that they did not have an extra room. She thought the visit went well, and appellant left in October 2014. L.B. was very emotional after appellant left, and Janet just thought that L.B. had missed him. In 2016, Hurst found the Instagram messages on L.B.'s phone and confronted L.B., who told her that appellant had raped her during his 2014 visit. Janet called the police and gave L.B.'s phone to Detective Rick Harmon as evidence.
Detective Harmon testified that the crime-scene officers took photographs of the September 26-27, 2016 Instagram messages. During his investigation, it was discovered that the 2016 Instagram account was registered on August 5, 2016, with the email address [email protected]. Detective Harmon further testified that the internet-service provider that had been used was Comcast. Detective Harmon admitted that the 2016 Instagram account could not be linked electronically or otherwise, appellant other than by L.B.'s statement.
L.B. testified that appellant had inappropriately touched her during his 2014 visit. She explained that on the night before he left, appellant told her that he was returning back to his home and family in Texas. After they went to bed, she pretended to be asleep while he raped her. Her testimony regarding the 2016 Instagram messages mirrored her testimony at the preliminary hearing. On cross-examination, L.B. admitted that she had felt abandoned by her father but denied holding a grudge against him.
Jayme Brown, appellant's current wife, testified that she and appellant have nine children, seven of which are his biological children. Two of the girls were approximately fifteen and seventeen years old. Jayme testified that she had never seen appellant act inappropriately with the girls. She further testified that she had access to appellant's social media accounts and that appellant's only Instagram account was named Brown RB 8433 Matoskah. She explained that their internet-service provider was Bryce Broadband and that Comcast does not provide service in their area. Moreover, Brown testified that appellant was in bed with her on the evening of September 26, 2016 (the date and time the alleged Instagram messages transpired).
Appellant testified and denied inappropriately touching L.B. and sending the 2016 Instagram messages. He admitted that he visited L.B. in 2014 after Janet had contacted him and invited him to get to know L.B. Appellant testified however, that L.B. was very angry with him when he told her that he was returning to Texas after his 2014 visit. He explained that she had locked herself in her mother's room, and he felt that L.B. was jealous of his other family in Texas. Appellant testified, as he did at the preliminary hearing, that he had only one Instagram account, Brown RB8433, and that he did not create the 2016 Instagram account with the username Robbm00. In addition to the one Instagram account, appellant testified that he had two Facebook accounts. One Facebook account has all his children on it, including L.B., and has the name Matoskah on it. The other Facebook account was used for his business. Appellant further reiterated that Comcast did not provide internet service in his area and that his internet-service provider was Bryce Broadband.
C.V., appellant's sixteen-year-old stepchild, testified that appellant is a great father and had never done anything sexually inappropriate. Additionally, Connie Kilanowski, appellant's mother-in-law, testified on appellant's behalf. Kilanowski testified that she thought appellant was the best father she had seen. She further testified that she had never seen him do anything that was sexually inappropriate around his children or grandchildren.
After the jury found appellant guilty, this appeal followed.
II. Instagram Messages
Appellant argues on appeal that the Instagram messages were inadmissible at trial because they were not properly authenticated under Arkansas Rule of Evidence 901. It is well settled that challenges to the admissibility of evidence are left to the sound discretion of the trial court, and a trial court's ruling on these matters will not be reversed unless there has been an abuse of discretion. Kauffeld v. State , 2017 Ark. App. 440, 528 S.W.3d 302. Nor will we reverse absent a showing of prejudice. Id.
Authentication of a document is a condition precedent to admissibility. Davis v. State , 350 Ark. 22, 86 S.W.3d 872 (2002). "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims." Ark. R. Evid. 901(a). Rule 901 further provides that the testimony of a witness with knowledge that a matter is what it is claimed to be is sufficient to authenticate evidence and also that appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances, can be used to authenticate evidence. Ark. R. Evid. 901(b)(1) & (4). However, in Gulley , our supreme court added an additional requirement in a case involving the authentication of text messages. Gulley v. State , 2012 Ark. 368, 423 S.W.3d 569. Gulley had alleged that three text messages were not authenticated because the State failed to show that he actually authored the messages but merely proved that the messages came from a cellular telephone number assigned to him. Id. There, our supreme court held that all three text messages were authenticated because there was other evidence linking Gulley to the texts. Id. Recognizing the slippery slope of authentication of electronic communications, our supreme court added the following requirement in an attempt to assure the text messages were actually from Gulley:
Gulley cites this court to Commonwealth v. Koch , 39 A.3d 996 (Pa. Super. 2011), in support of his contention that the text messages at issue in his case were not properly authenticated. Because the text messages at issue were properly authenticated, as required by Arkansas Rule of Evidence 901, we need not look to other jurisdictions to resolve this issue. We note, however, that the Koch Court held that the authentication of electronic communications requires more than mere confirmation that the telephone number belonged to a particular person; circumstantial evidence, which tends to corroborate the identity of the sender, is also required. Id. at 1005. In the instant case, sufficient circumstantial evidence was presented to corroborate the identity of the sender.
Gulley v. State , 2012 Ark. 368, at 15 n. 4, 423 S.W.3d 569, 579 n.4 (emphasis added).
Our court reiterated this additional requirement in Duvall v. State , 2018 Ark. App. 155, 544 S.W.3d 106, when we said, "Our supreme court has required 'sufficient circumstantial evidence' to 'corroborate the identity of the sender'; in other words, there must be some indicia of authorship. " Duvall v. State , 2018 Ark. App. 155, at 13, 544 S.W.3d 106, 114 (emphasis added). In each of the cases decided by this court since Gulley in which we held that electronic evidence was authenticated and admissible, there has been sufficient circumstantial evidence corroborating the identity of the sender. See McPherson v. State , 2017 Ark. App. 515, 532 S.W.3d 96 (the victim had actual knowledge that the defendant was the sender of the Snapchat messages at issue because she subsequently met up with the defendant as instructed in the Snapchat messages); Hoey v. State , 2017 Ark. App. 253, 519 S.W.3d 745 (the text messages, photos, and internet searches at issue were retrieved from the defendant's cell phones); Donley v. Donley , 2016 Ark. 243, 493 S.W.3d 762 (the defendant had acknowledged that it was her Facebook account and that the comments at issue were made under that same account); Todd v. State , 2012 Ark. App. 626, 425 S.W.3d 25 (the defendant admitted upon his arrest that he had been talking to the victims for about two weeks).
Finally, although just persuasive authority, we found U.S. v. Vayner , 769 F.3d 125 (2014), to be helpful to our analysis. There, the Second Circuit reversed a district court's decision to allow the special agent to introduce printouts from a VK (the Russian equivalent of Facebook) profile page. The Second Circuit held that the government failed to provide extrinsic information showing that Zhyltsou was the page's author or otherwise tying the page to Zhyltsou. "It is uncontroverted that information about Zhyltsou appeared on the VK page: his name, photograph, and some details about his life consistent with Timku's testimony about him. But there was no evidence that Zhyltsou himself had created the page or was responsible for its contents.... And contrary to the government's argument, the mere fact that a page with Zhyltsou's name and photograph happened to exist on the Internet at the time of Special Agent Cline's testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf." Id. at 132.
Although L.B.'s testimony was sufficient to authenticate that the photographs of the Instagram messages accurately reflected the images on her phone, she admitted that she did not have any actual knowledge that appellant was the one sending those messages. In fact, the evidence introduced at the preliminary hearing directly undermined the State's argument that appellant sent those messages. L.B. testified that the 2016 messages were sent from a new Instagram account that appellant had not previously used to communicate with her. The State alleged that appellant had sent the messages in 2016 after he had returned to his home in Texas and that the IP address was provided by Comcast, the internet-service provider; yet, the unrebutted testimony was that Comcast did not provide service in appellant's area and that his internet-service provider was Bryce Broadband. Additionally, even L.B. admitted that anyone could create another account with a similar username, same digital profile picture, and same profile quote. Further, there was nothing in the content of the messages that was known only to appellant. Therefore, after reviewing the pertinent cases, we cannot say that the State provided sufficient circumstantial evidence to corroborate that appellant sent the alleged Instagram messages or that there is sufficient indicia of authorship. See Gulley , supra ; Duvall , supra . Thus, under these facts, the State failed to authenticate the Instagram messages, and the trial court abused its discretion in ruling that they were admissible.
That does not, however, end our inquiry. Even when appellant has proved error, where the evidence of guilt is overwhelming and the error slight, we can declare the error harmless and affirm. Scamardo v. State , 2013 Ark. 163, 426 S.W.3d 900. However, as in Scamardo , we cannot say here that the evidence was so overwhelming as to appellant's guilt or that the error was so slight. Absent appellant's confession, the main evidence supporting the convictions was L.B.'s testimony and her statements to third parties. Because credibility was critical to the jury's resolution of the conflicting stories, we reverse and remand for a new trial. See Rogers v. State , 2018 Ark. 309, 558 S.W.3d 833.
Reversed and remanded.
Gladwin, Glover, and Vaught, JJ., agree.
Gruber, C.J., and Brown, J., dissent. | [
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BRANDON J. HARRISON, Judge
David Wingfield appeals his convictions for rape and second-degree sexual assault, arguing that the circuit court erred in (1) denying his motion for directed verdict, (2) denying his motion to suppress, and (3) admitting a report prepared by the sexual-assault nurse examiner who examined the victim. We affirm.
In a criminal information filed in September 2017, Wingfield was charged with four counts of rape and five counts of second-degree sexual assault. Wingfield was also charged as a habitual offender. The attached affidavit for an arrest warrant explained that police had been contacted after the twelve-year-old victim, JB, told her aunt that her mother's boyfriend, Wingfield, had been having sex with her. After a jury trial, Wingfield was found guilty of all counts and sentenced to an aggregate term of eighty-five years' imprisonment. Specific facts pertinent to each point on appeal will be discussed below.
I. Sufficiency
Wingfield's sufficiency argument is his third argument on appeal, but because of double-jeopardy concerns, we consider challenges to the sufficiency of the evidence before addressing other arguments. Gillean v. State , 2015 Ark. App. 698, 478 S.W.3d 255. This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. See Tubbs v. State , 370 Ark. 47, 257 S.W.3d 47 (2007). In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. The credibility of witnesses is an issue for the jury and not the court. Morgan v. State , 2009 Ark. 257, 308 S.W.3d 147. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
At trial, the State introduced the following pertinent evidence in support of the verdict:
Sergeant Jesus Coronado testified that he specializes in cases of sexual abuse and rape involving children. He initiated an investigation into the allegations against Wingfield and, as part of that investigation, scheduled an interview of JB at the Children's Advocacy Center in Texarkana. Jessica Kelly interviewed JB while Coronado observed on a closed-circuit television. Coronado also requested a SANE exam, which is a physical examination performed by a certified sexual-assault nurse examiner. Coronado interviewed Wingfield at the Hope Police Department and asked if he would consent to a voice-stress-analysis (VSA) test. Coronado requested that the prosecutor's office prepare a "voice stipulation," which is an agreement that the results of the VSA can be used in court.
Jessica Kelly, the lead forensic interviewer at the Texarkana Children's Advocacy Center, testified that she interviewed JB and that JB had disclosed that she had been sexually abused.
Brandi Wilson, a registered nurse, testified that in July 2017 she was working at the Children's Advocacy Center as a SANE nurse. Wilson performed a SANE exam on JB, which included collecting information on JB's medical history and assault history. Wilson read from her written report the information as given by JB regarding her assault history: "It was day and night time, he touched me with his hands on my private area. He pulled my clothes off and he pulled his down." According to Wilson, JB mumbled and was hard to understand at times; she was more comfortable pointing to body parts that had been labeled on a drawing of male and female bodies.
Andrew Watson, a former Hope Police Department detective, testified that he was the certified VSA examiner for the department in July 2017 and that he administered a VSA on Wingfield. Watson explained that he asked two questions in particular about the allegations: (1) Have you touched [JB]'s vagina, and (2) have you put your penis inside [JB]'s vagina. According to Watson, Wingfield did not respond truthfully and "showed to be deceptive on them."
JB testified that she is twelve years old and that Wingfield had been her mother's boyfriend and had lived with them. She agreed that Wingfield had touched her body in ways she did not like, that he had touched her with different parts of his body, and that it had made her uncomfortable. She indicated that he had touched her breasts and between her legs and that his private part had gone inside her private part. She also said that Wingfield had licked her breasts and her private part. JB stated that this activity had started when she was six or seven and continued until she was twelve. She identified Wingfield in the courtroom.
Wingfield moved for a directed verdict, arguing that "there's no proof of sexual intercourse or sexual deviate activity of [sic] penetration." He also asserted that the State had not met its burden for all five second-degree sexual-assault charges. The court found
There are five and six, there's at least two touching of the breast, seven, eight and nine, sexual assault that was-I mean a jury could say that based upon what was presented a trier of fact could look and determine that for whatever reason sexual contact as opposed to sexual, deviate sexual activity or sexual intercourse. I mean there was contact and she said it happened in more than one house over more than one time at each of those houses. Then she said this had been happening since she was six or seven, nine, ten and eleven. That's what the evidence says. That will be up to the trier of fact determined but I believe the State has met its burden of going forward at this point.
After the defense presented its case, the directed-verdict motion was renewed and again denied.
On appeal, Wingfield makes several arguments: (1) JB's testimony was not clear or consistent; (2) there was no evidence that Wingfield was JB's guardian, temporary caretaker, or a person in a position of trust or authority over her; and (3) the jury had to speculate to distinguish nine separate offenses of rape or second-degree sexual assault. Of these arguments, the only one arguably preserved for our review is that the State failed to prove five separate instances of second-degree sexual assault. The remainder of Wingfield's arguments were not raised to the circuit court, and issues raised for the first time on appeal will not be considered. See Chavez v. State , 2018 Ark. App. 527, 564 S.W.3d 268.
A person commits the offense of second-degree sexual assault if he or she engages in sexual contact with a minor and is the minor's guardian, temporary caretaker, or a person in a position of trust or authority over the minor. See Ark. Code Ann. § 5-14-125(4)(A)(iv) (Supp. 2017). Sexual contact is defined as "any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female." Ark. Code Ann. § 5-14-101(11). Wingfield asserts that JB did not recount separate and distinct events and that the jury had to resort to speculation and conjecture to find him guilty of five counts of second-degree sexual assault.
This court has held that a sexual-assault victim's testimony may constitute substantial evidence to support a sexual-assault conviction. Wilson v. State , 2018 Ark. App. 371, 554 S.W.3d 279. And it is not necessary for the State to prove specifically when and where each act of rape or sexual contact occurred, as time is not an essential element of the crimes. Rains v. State , 329 Ark. 607, 953 S.W.2d 48 (1997). In this case, JB testified that Wingfield touched her breasts and between her legs, with his hands and his mouth, on multiple occasions over the course of six years. The jury did not have to speculate to conclude that at least five instances of second-degree sexual assault had occurred. Thus, we hold that substantial evidence supports Wingfield's convictions.
Within Wingfield's sufficiency argument, he also argues that the circuit court erred in allowing the prosecutor to ask leading questions during JB's testimony. Our supreme court has held that if it appears necessary to lead a child witness to elicit the truth, the appellate court will affirm the circuit court's decision in allowing leading questions, absent an abuse of discretion. Clark v. State , 315 Ark. 602, 870 S.W.2d 372 (1994). Leading the witness is allowed in these circumstances because of (1) the seriousness of the crime, (2) the natural embarrassment of the witness about the incident, (3) the child's fear of being in a courtroom full of people, (4) the necessity of testimony from a victim, (5) threats toward victims from those perpetrators, and (6) to avoid the possibility that an accused might escape punishment for a serious offense merely because of the victim's reluctance to testify. Id. When reviewing the decision to allow a prosecution to lead a witness, the youth, ignorance, and timidity of a witness are important factors that mitigate against a finding of an abuse of discretion. Johnson v. State , 71 Ark. App. 58, 25 S.W.3d 445 (2000).
Wingfield argues that "the record is silent regarding any evidence which suggested the alleged victim was nervous or upset at the intimate nature of the questioning," therefore the circuit court abused its discretion in allowing the prosecutor to lead the witness. We first note that while Wingfield did make three objections as to leading during JB's testimony, he has failed to abstract those objections or the circuit court's rulings. Second, in its rulings on the objections, the circuit court found that due to the child's age and the nature of the questions being asked, the State would be given leeway in its questioning. Based on a review of the record of JB's testimony, she was a reluctant witness and refused to look at Wingfield during her questioning. Thus, we disagree with Wingfield's assessment that JB was not "nervous or upset" during her questioning and hold that the circuit court did not abuse its discretion in allowing leading questions.
II. Suppression
On 30 January 2018, Wingfield moved to suppress "certain statements purportedly made by the defendant after he was taken into custody by the Hope Police Department." He alleged that these statements were not voluntarily made and were taken in violation of his constitutional and statutory rights. At a pretrial hearing on February 6, Wingfield more specifically argued that the circuit court should suppress the results of the VSA because "it was not voluntarily given or stipulated to." The court viewed a video of Andrew Watson explaining to Wingfield the consent for the VSA examination, which included his Miranda rights, and the joint agreement to admit the results of the VSA in court. Wingfield signed the consent form without asking any questions. Regarding the joint agreement to admit the results, the following exchange occurred:
WATSON : And this is our Joint Agreement to Admit the Results of the Computerized Voice Stress Analysis in court, okay? So what it is, I'm going to read all of this to you but kind of explain to you what it is. I was talking to the Prosecuting Attorney, Christi McQueen[,] and what it is she's agreeing that whatever the results are, there's a chance we'll be able to use this in court. And you'll have to agree to that and so if you think it's-you fail the test of what you're saying that I can show the Court and I say, hey, these questions I asked, he failed.
WINGFIELD : What can happen?
WATSON : If you take this test and you pass this test I'll show the Court and say hey, this is what I asked and he passed this test. He's telling the truth so but let me read this out loud to you and then you can sign it.
Watson read the agreement out loud, asked Wingfield if he agreed with it, told him he could read over it, and asked him to sign if he agreed. Wingfield signed the agreement without any further questions or comments.
Wingfield's counsel argued that Wingfield had indicated on the video
that he didn't know anything about the test. He informed him that he would take it but he didn't have no [sic] knowledge about how reliable it was, what type of test-he knew what type of test it was but he didn't know how it affects him. So if he's not fully informed, how can it be-to him; that's my point. If they had told him that this test is not used in every case and basically it's considered unreliable, he may not have taken it.
The State responded that the joint agreement was sufficient according to Hayes v. State , 298 Ark. 356, 767 S.W.2d 525 (1989), which held that polygraph-test results are generally inadmissible, except upon a written stipulation of the parties. The State also argued that Wingfield had signed the stipulation without asking any further questions.
Wingfield took the stand and testified that when asked to take the VSA, "I'm pretty much like well if it pretty much lets y'all know if I did it or not well I'll take the test." When asked if he would have taken the test if he had been told that it was not reliable, he said no. But he also acknowledged that if he had passed the test, he would have wanted the judge to know that he had passed. The circuit court denied the motion to suppress and found that the VSA could be introduced into evidence.
Arkansas law prohibits the admission of polygraph test results except upon a written stipulation of the parties. Hayes, supra. Stipulation agreements about the use of polygraphs are to be scrutinized carefully by the courts and will not be honored if any questions or problems arise. Id. We review a circuit court's decision denying a defendant's motion to suppress by making an independent determination based on the totality of the circumstances. Holly v. State , 2017 Ark. 201, 520 S.W.3d 677. But a circuit court's factual findings will be reversed only if they are clearly against the preponderance of the evidence. Id. A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily. Id.
Wingfield makes several arguments on this point: (1) he was given false hope of leniency; (2) the prosecuting attorney did not participate in the stipulation (even though her signature appears on the stipulation), or if she did, she violated her special duties as prosecutor that bar her from obtaining a waiver from an unrepresented defendant; (3) Detective Watson was improperly acting as an agent of the State; (4) his consent to the VSA was involuntary; and (5) VSA exams or polygraphs are inherently unreliable. Wingfield urges us to hold that the law allowing the admission of polygraph results except upon a written stipulation of the parties does not extend to situations in which the accused is not represented by counsel. Of these arguments, the only one preserved for our review is that his consent to the VSA was involuntary. The remainder of Wingfield's arguments were not raised to the circuit court, and issues raised for the first time on appeal will not be considered. See Chavez, supra.
Wingfield concedes that he was advised of his right to an attorney, waived his right to consult with counsel, and affirmatively stated that he was signing the consent to the VSA without any threat, coercion, or promise of leniency. He also concedes that he signed the stipulation in which he agreed that he was not represented by counsel and agreed to submit to the VSA without the benefit of legal advice. Nevertheless, he argues that the VSA results should not have been admitted because his participation was involuntary. His only support for this argument is that he lacked the knowledge that these tests are considered unreliable and generally not admissible.
In response, the State cites United States Supreme Court law holding that a
valid waiver does not require that an individual be informed of all information "useful" in making his decision or all information that "might ... affec[t] his decision to confess." "[W]e have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights." Here, the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature.
Colorado v. Spring , 479 U.S. 564, 576-77, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) (internal citations omitted). In other words, the State argues, Wingfield's not appreciating that the VSA might not be considered reliable concerns the wisdom of his decision to submit to the analysis but not his knowing and voluntary submission.
Wingfield raised no argument putting his cognitive or decision-making skills into question; he simply asserts that if he had known the results could be unreliable he would not have agreed to the VSA. However, he cites no law requiring police to provide such information, and although he was free to ask about the test's reliability, he did not do so. Thus, we find no error in the denial of his motion to suppress.
III. Admission of SANE Report
On 2 February 2018, the State filed notice of its intent to call Brandi Wilson, a certified SANE nurse, as an expert in sexual-assault nurse examination. The State explained that Wilson was expected to testify to statements made to her by JB during the medical-history segment of her exam and that those statements had been made for purposes of medical diagnosis or treatment. Thus, it argued, JB's statements to Wilson should be permitted under the medical-treatment exception to Ark. R. Evid. 803(4). According to the record, Wingfield did not file a response to this motion.
During Wilson's testimony at trial, she explained that she had prepared a written report as part of her exam, and she read a part of the report without objection. She also explained that during the exam, JB had been more comfortable pointing to body parts that had been labeled on a drawing of male and female bodies. When asked which parts JB had pointed to, Wilson said, "She pointed, disclosing penetration of the anus, vagina with digits and penis. And she also pointed to areas labeled mouth, breast and privates. Stating that she had been licked, kissed on her mouth, breast, buttocks and vagina." The defense objected, and the following colloquy occurred:
THE COURT : She described where she pointed to. She described within the report that she was taking down where the child pointed to.
PROSECUTOR : Yes, sir.
THE COURT : And I believe there's digital or penetration or something to that effect. However, tell me why we need to go into what the child said.
PROSECUTOR : We need to go into what the child said. This report, the SANE exam is admissible and we will submit, she can certify or verify that the copy of the report is a copy of her report and we will offer it into evidence.
THE COURT : I think you can do that.
PROSECUTOR : But the information is necessary for her to-
THE COURT : Is there an objection on hearsay to that, it's a medical report done in her job.
DEFENSE COUNSEL : I mean she's testified about what the child said, licking and kissing and all of that. I mean we was talking about just her-THE COURT : It's in her report.
PROSECUTOR : But we have repeatedly in this courtroom allowed SANE examiners to testify.
THE COURT : I understand. Certainly her report is admissible. But for her to pick and pick about that report that's already admissible, isn't that the best evidence?
PROSECUTOR : Just proving-
THE COURT : I will allow you to get her qualified. That's her report and it's a copy of it and she's going to say that's her full report and you can.
DEFENSE COUNSEL : I still object to it, Your Honor.
THE COURT : Over your objection as to the admissibility of the medical report.
The hearsay exception found in Rule 803(4) provides for the admission of statements made for the purpose of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, as reasonably pertinent to diagnosis. Our court will not reverse a circuit court's evidentiary ruling unless there was an abuse of discretion. Williams v. State , 2012 Ark. App. 447, 2012 WL 3744714.
Wingfield argues that the circuit court erred in allowing Wilson's written report into evidence "because it was filled with the alleged victim's testimony; not necessary for medical treatment." As an example, he cites the following statement from JB as written by Wilson in her report: "It was day and night time, he touched me with his hands on my private area. He pulled my clothes off and he pulled his down." He also argues that the admission of the report was not harmless due to JB's uncertainty during her own testimony.
After expressing doubt that Wingfield's argument is preserved, the State asserts that the report was admissible under Rule 803(4) according to current appellate law:
The Arkansas Supreme Court has expressly held that the medical-treatment exception to the hearsay rule found in Rule 803(4) permits hearsay identifying the perpetrator in the special case of a child-abuse victim where the abuser is a member of the child's immediate household and the statement is made in the course of a medical examination for the purpose of diagnosis and treatment.
Elliott v. State , 2010 Ark. App. 809, at 6, 379 S.W.3d 101, 105. The State also contends that even if the report was not admissible, the error was harmless because the same or similar evidence was admitted at trial, and Wingfield had the opportunity to cross-examine JB about any statements she made to Wilson.
We hold that Wingfield's argument is not preserved. As illustrated by the above colloquy, defense counsel never articulated any argument against the report's admission, even after the circuit court suggested that counsel object on hearsay grounds, and issues raised for the first time on appeal will not be considered. See Chavez, supra.
Affirmed.
Klappenbach and Glover, JJ., agree. | [
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BART F. VIRDEN, Judge
Gary Phillips appeals the Mississippi County Circuit Court's denial of his motion to set aside summary judgment in favor of DeLage Landen Financial Services ("DeLage"). On appeal, Phillips argues that (1) he was entitled to relief pursuant to Rules 55 and 60 of the Arkansas Rules of Civil Procedure ; (2) the circuit court lacked jurisdiction; and (3) the city of Blytheville's ("the city's") original answer denying that DeLage is entitled to judgment inured to his benefit. While the appeal was pending, DeLage filed a motion to dismiss contending that Phillips untimely filed his notice of appeal. We affirm the circuit court's decision and deny the motion to dismiss.
I. Relevant Facts
In 2013, Phillips was the general manager of the Blytheville Waterworks Department ("waterworks"), and he entered into three lease agreements with Memphis Communications Corporation for three copy machines, among other items. On March 2, 2015, DeLage filed a complaint against the city for replevin of personal property and for the remaining payments on the three separate lease agreements for the copiers. On April 16, 2015, the city filed an answer denying responsibility for the defaulted leases, and it attached an incident report detailing Phillips's involvement regarding $ 9,708 missing from the waterworks account. The city stated that the copiers subject to the lease were in the possession of the Arkansas State Police pending an investigation into an alleged fraud in connection with their purchase.
On May 11, 2015, DeLage filed an amended complaint naming the city, waterworks, and Phillips as defendants. DeLage requested $ 99,049.65 for the unpaid lease agreements. In the amended complaint, DeLage asserted that "should it be demonstrated to the Court that Blytheville did not benefit from, use or authorize the lease of the subject property, Phillips has committed an act of conversion by exercising dominion and control over Plaintiff's property adverse to Plaintiff's superior rights in the property." Phillips was served with a copy on May 18, 2015. He did not file a response to the complaint.
On June 5, 2015, the city filed a separate answer in which it claimed that Phillips signed all three leases without authority to do so and that he had used the city's checks to make unauthorized withdrawals on its accounts.
On February 10, 2016, the city and waterworks were served with requests for admissions. Neither the requests for admissions, nor the separate defendants' responses to them were served on Phillips. On September 1, 2016, Phillips was served with DeLage's request for admissions. DeLage requested that Phillips admit or deny that he had no authority to sign the lease agreements for the copy machines, that his name appears on the agreements, that he received the property, that he had not made the payments, that payment was past due, and that the total amount due was $ 99,049.65. Phillips did not respond to the requests for admission.
On October 14, 2016, DeLage filed a motion for summary judgment, requesting that the court dismiss the city and waterworks and hold only Phillips liable. Phillips was served with this motion and did not respond.
On February 7, 2017, the circuit court entered an order for summary judgment. Based on Phillips's failure to answer the amended complaint for replevin and his failure to respond to the request for admissions, the circuit court deemed that Phillips had admitted the following: that his signature was on the three lease agreements at issue, that he did not have the authority to execute the lease agreements on the city's behalf, that he received the leased property, that he had not made the required lease payments, that he was in default on the lease contract, and that the total accelerated amount due on the leases is $ 99,049.65. The circuit court granted summary judgment to DeLage and awarded the past-due amount plus 10 percent postjudgment interest and $ 1,715 in costs and attorney's fees.
On February 27, 2017, Phillips filed a motion to set aside default judgment pursuant to Arkansas Rule of Civil Procedure 55(c). Phillips asserted that "there are multiple issues of fraud and misrepresentation contained in this case file" and that he could present a meritorious defense in the matter. Specifically, Phillips contended that (1) DeLage was not licensed to do business in Arkansas; (2) he was authorized to enter the lease contract; (3) he never converted the copy machines because the city always had possession of them; (4) the copy machines had been returned in almost new or new condition to the leasing agent and DeLage had failed to mitigate damages; and (5) he was never served with the separate defendants' requests for admission and answers to the requests. Phillips asserted that he had proved a meritorious defense to the judgment because the city and waterworks had possession and control of the leased equipment.
On March 13, 2017, Phillips filed an amended motion to set aside judgment in which he argued that the judgment could also been seen as one for summary judgment, and under Arkansas Rule of Civil Procedure 60(c), the circuit court should set aside the judgment. In his amended motion he reiterated the contents of his original motion, and he stated that he did not respond to the initial complaint because he "honestly believed that the City of Blytheville and the Blytheville Waterworks would file responses which would inure to his benefit" and that the separate defendants' indication that Phillips had personal liability in this matter came as a "complete shock[.]" Phillips asserted that the leases named the city as the guarantor and lessee and that as the manager of waterworks, he had authority to enter into the lease agreement. He explained that when he resigned from the position, the copiers were in "brand new condition." Phillips asserted that the judgment against him was a windfall for DeLage, and allowing the judgment to stand constituted a miscarriage of justice. Phillips contended that he could present a meritorious defense because he had been an agent of waterworks and could not be held personally liable on the lease contract.
The circuit court held a hearing on the matter in August 2017, and Phillips chose not to testify at the hearing. The circuit court ordered posthearing briefs regarding the issue of the court's subject-matter jurisdiction over the case. In his brief, Phillips argued that the lease agreement contained a clause that divested the Arkansas courts of jurisdiction. Phillips also reiterated his arguments that he was never served with the separate defendants' requests for admissions or responses; that he had the authority to enter the leases and any contention otherwise was false; that the amount of damages was preposterous; that the city's contention that he personally profited from the lease transactions was untrue; and that the city's contention that it did not benefit from the leases was also false.
On December 27, 2017, the circuit court entered an order denying the motion to set aside the judgment. In the order, the circuit court found that Phillips did not dispute that he was properly served with the amended complaint and with a request for admissions and that he failed to respond to both. The circuit court determined that by not responding to the request for admissions, Phillips admitted that
(a) his signature was on the three lease agreements in question
(b) Phillips did not have the authority to execute said lease agreements on behalf of the City of Blytheville;
(c) Phillips received the leased property;
(d) Phillips has not made all the payments required by the leases;
(e) Phillips is past due and in default; and
(f) The total amount due DLL is $ 99,049.65
The circuit court specified that its order was for summary judgment and not default judgment; thus, Rule 55 of the Arkansas Rules of Civil Procedure was inapplicable. Moreover, the circuit court found that Phillips's request to set aside the summary judgment based on his allegation of fraud or misrepresentation by the opposing party was also without merit. Specifically, the circuit court stated that Phillips should have contested DeLage's claims against him by responding to the complaint, which Phillips admitted he failed to do. The circuit court concluded that Phillips presented no evidence of fraud or misrepresentation and that he failed to cite authority for setting aside a summary judgment "where a defendant has failed to timely challenge factual allegations in a complaint." The circuit court found that Phillips's assertion that he did not discover the false complaints against him until after the allegations were deemed admitted was not credible. The court determined that Phillips's Rule 60(a) claim was unfounded for the same reasons as stated above and that Phillips failed to prove that a miscarriage of justice would occur if the judgment was not set aside. The circuit court noted that a petitioner requesting relief under Rule 60(a) is subject to the ninety-day limitation for obtaining a ruling on the motion and that ninety days had long passed. Finally, the circuit court noted that the forum-selection clause in the lease agreement did not affect its jurisdiction over the case and that "Phillips confuses consent to personal jurisdiction and mutual choice of forum with subject matter jurisdiction so as to deprive this court of the latter." Phillips filed a timely notice of appeal.
II. Points on Appeal
A. Default Judgment v. Summary Judgment
Phillips argues that this appeal "implicates, potentially, two different Rules of Civil Procedure" namely Rule 55 governing default judgments and Rule 60 that sets forth the procedure for setting aside summary judgment. Phillips's argument that "[t]his case has attributes of both a default judgment and a summary judgment" is not well taken, and we affirm the circuit court's determination that its order was for summary judgment.
In Citibank, N.A. v. Carruth , 2015 Ark. App. 704, at 10-11, 2015 WL 8479359, this court performed the following analysis regarding whether an order was for summary judgment or default judgment:
We cannot agree with Carruth's characterization of the summary-judgment order as a default judgment. Although the summary-judgment order stated that Carruth failed to respond to Citibank's summary-judgment motion, the order further stated that, by failing to file a response, Carruth failed to meet proof with proof, failed to demonstrate the existence of a genuine issue of material fact, and therefore that Citibank was entitled to judgment as a matter of law.
...
There is a clear distinction between summary judgment under Rule 56 and a default judgment under Rule 55. Rule 55(a) provides that a default judgment may be entered when a party against whom a judgment is sought has failed to plead or otherwise defend as provided by the rules.... The summary-judgment order was not rendered on the basis of a failure to respond to the complaint, but rather on the basis that Carruth had failed to meet proof with proof and that Citibank was entitled to judgment as a matter of law.
In the instant case, the circuit court determined that Phillips failed to timely respond to the request for admissions; thus, he admitted all allegations, and there was no material question of fact remaining. The circuit court found the following:
5. Accordingly, Separate Defendant Phillips has failed and refused to file an Answer or Response herein within thirty [30] days of service of the Amended Complaint upon him as required by the Arkansas Rules of Civil Procedure. Phillips is in default and the allegations in the Amended Complaint should be deemed admitted by Phillips.
6. Furthermore, Phillips was served with Requests for Admission on September 1, 2016 and Phillips has failed and refused to respond to the Requests. Accordingly, the Requests for Admission are deemed admitted by Phillips as stated in the motion.
7. Phillips has admitted default in failing to respond to both the Amended Complaint and to the Requests for Admissions, there are no genuine issues of material fact to be adjudicated and DLL is entitled to Judgment against Phillips.
The circuit court ordered summary judgment based on Phillips's admission of all allegations against him and all facts asserted by DeLage; thus, Rule 60-and not Rule 55-controls and is the proper basis for our review.
We now turn to Phillips's argument that the circuit court should have granted his amended motion to set aside judgment under Rule 60(a) to prevent a miscarriage of justice. We disagree. Arkansas Rule of Civil Procedure 60(a) states that "[t]o correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk." Our supreme court has held that the circuit court has broad authority to correct nonclerical mistakes or errors to prevent a miscarriage of justice if the court does so within ninety days of the filing of its decree or order. See Watson v. Connors , 372 Ark. 56, 60, 270 S.W.3d 826, 830 (2008) (holding that "when the error is not a clerical error, it cannot be corrected 'at any time,' but must be corrected within the ninety days provided in Rule 60(a)"). Though Phillips filed his motion within ninety days of the order for summary judgment, the circuit court did not enter the order denying the motion to set aside until ten months after the filing of the order. The circuit court correctly found that "no caselaw has been cited which would authorize a tolling of the ninety (90) day limitation. Consequently, the summary judgment may not be set aside under the provisions of Rule 60(a)." Thus, Phillips's claim for relief under Rule 60(a) is without merit.
Phillips also asserts that the circuit court erred by denying his request to set aside the judgment pursuant to Rule 60(c)(4) for misrepresentation or fraud by an adverse party. Phillips contends that the city's claim that he was acting outside the scope of his duties by signing the leases is false, that the damages calculated by DeLage are "preposterous," that any allegation that he personally profited from the leases is untrue, that any allegation that the city did not benefit from the lease of the copiers is also false, and that the forum-selection clause dictates that the suit be brought in Minnesota; therefore, filing the lawsuit here is a fraud on the court. We hold that the circuit court did not err in denying Phillips's request for relief under Rule 60(c)(4).
After ninety days have elapsed from the entry of judgment, the circuit court's control is limited by Rule 60(c). Dickson v. Fletcher , 361 Ark. 244, 251, 206 S.W.3d 229, 233 (2005). Rule 60(c)(4) provides an extension of the ninety-day time limit to set aside judgment for fraud or misrepresentation by an adverse party. Whether or not the ninety-day period has expired, a defendant moving to set a judgment aside must make a prima facie showing of a valid defense. Ark. R. Civ. P. 60(d). In order to prove fraud, a plaintiff must prove five elements under Arkansas law: (1) that the defendant made a false representation of material fact; (2) that the defendant knew that the representation was false or that there was insufficient evidence upon which to make the representation; (3) that the defendant intended to induce action or inaction by the plaintiff in reliance upon the representation; (4) that the plaintiff justifiably relied on the representation; and (5) that the plaintiff suffered damage as a result of the false representation. Jewell v. Fletcher , 2010 Ark. 195, 377 S.W.3d 176. The party seeking to set aside a judgment on the basis of fraud has the burden of proving fraud by clear, cogent, and convincing evidence, or as our courts have sometimes said, clear, strong, and satisfactory proof. Id. The motion is addressed to the sound discretion of the circuit court. Sory v. Woodall , 73 Ark. App. 344, 43 S.W.3d 765 (2001). Our supreme court has stated that a party is not entitled to relief under Rule 60(c) if diligence has not been exercised in protecting his or her interests. Johnson v. Ark. Prof'l Bail Bond Co. , 2011 Ark. App. 427, 2011 WL 2395104.
The circuit court found that Phillips presented no evidence of fraud or misrepresentation. Instead, the circuit court noted, Phillips simply denied the allegations against him and responded to the requests for admission: "Phillips's argument seems to be that he is entitled to a second opportunity to litigate the allegations in the complaint on the basis of his belated (as far as the record is concerned) contentions they are false." Indeed, Phillips chose not to testify at the August hearing and offered no proof to support his contention of fraud or misrepresentation. On appeal, Phillips reiterates that the city and DeLage falsely claimed that he had no authority to execute the leases, that he personally benefited from the leases, that the city did not benefit from the leases, and that the damages were miscalculated. We agree with the circuit court that Phillips's arguments amount to a response to the request for admissions, and we hold that it did not abuse its discretion by denying his motion to set aside judgment. On this point, we affirm.
B. Jurisdiction
Phillips argues that the circuit court lacked jurisdiction because of the language in the contract allowing Memphis Communication Corporation to hail Phillips into the Minnesota court. The clause sets forth that "[b]oth parties agreed to waive all rights to a jury trial. The Master Agreement and each schedule shall be governed by the laws of Minnesota. You consent to the jurisdiction and venue of the Federal and State courts in Minnesota." Phillips claims that the forum-selection clause in the contract not only constitutes a valid defense to the action against him, it is proof that "bringing this action at all in Arkansas is a fraud on the court[.]" The circuit court correctly found that Phillips confused subject-matter jurisdiction with choice-of-forum agreements. In RMP Rentals v. Metroplex, Inc. , 356 Ark. 76, 81, 146 S.W.3d 861, 864 (2004), our supreme court distinguished the two:
Choice-of-forum clauses in contracts have generally been held binding, unless it can be shown that the enforcement of the clause would be unreasonable and unfair. Nonetheless, the determination of subject-matter jurisdiction is paramount. Parties may by agreement consent to personal jurisdiction in a given court, but subject-matter jurisdiction cannot be conferred merely by agreement of the parties. While a forum-selection clause implies consent as to personal jurisdiction, it cannot confer subject-matter jurisdiction over in rem proceedings.
(Internal citations omitted.)
The language from the lease agreement that the parties "consent to the jurisdiction and venue of the Federal and State courts in Minnesota" does not confer subject matter jurisdiction to Minnesota and its courts. It simply means that the parties agree to be hailed into Minnesota courts if necessary. Phillips's argument has no merit, and we affirm.
C. Common-Defense Doctrine
Phillips argues that the city's original answer inured to his benefit because the city denied that DeLage was entitled to judgment. Phillips briefly touched on the issue of the common-defense doctrine when he argued at the hearing that he should have been served with the city's separate response to the complaint for replevin. Phillips contended that "in the amended complaint, the City of Blytheville responded in which typically a co-defendant's response would inure to his benefit, but he was not provided with that." The circuit court did not rule on whether the common defense doctrine was available to Phillips under these facts; thus, his argument is not preserved for appeal. See Morgan v. Chandler , 367 Ark. 430, 436, 241 S.W.3d 224, 228 (2006).
Affirmed; motion to dismiss denied.
Abramson and Hixson, JJ., agree.
Rule 60(c)(4) extends time to file a motion to set aside judgment and for entry of the order of judgment on the motion past ninety days; thus, Phillips's motion was timely filed, the entry of the order past the ninety-day limit was proper, and the notice of appeal was timely filed. We deny DeLage's motion to dismiss on such basis. | [
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DAVID M. GLOVER, Judge
Ashley Cole appeals the Dallas County Circuit Court's order terminating her parental rights to her five children: son J.C. (born 9-18-07), son S.M. (born 10-20-10), daughter L.M. (born 5-21-13), son B.P. (born 4-29-15), and son J.P. (born 5-18-16). She contends the circuit court erred in terminating her parental rights because the Arkansas Department of Human Services (DHS) failed to prove termination was in her children's best interest; specifically, she argues there was insufficient evidence of the likelihood of adoption. We affirm the termination.
Facts
The four older children were taken into DHS custody on an emergency basis in January 2016 after allegations of child maltreatment were made regarding J.C., who uses a wheelchair and has a feeding tube. It was reported that Cole had come to Arkansas from Mississippi with the children, but she had failed to begin J.C.'s therapies in Arkansas and had "not been paying good attention to him." During the DHS investigation of these allegations, Cole tested positive for THC; she took the children out of the home in which they had been living but did not take any of J.C.'s medical products; and it was discovered J.C. had missed twenty days of school. When DHS finally located Cole, the home in which she and the children were living had no furniture or food; clothes were strewn about the home; the children smelled of urine, dirt was caked on their faces, and they had head lice; and none of J.C.'s medical equipment was in the home. The circuit court granted DHS an ex parte order of emergency custody; a probable-cause order continuing custody with DHS was also granted. An adjudication order was entered in April 2016; in it, the circuit court noted J.C. had missed an excessive amount of school (20 days), thereby missing his necessary occupational, speech, and physical therapies; Cole had tested positive for THC; J.C.'s medical equipment was not in the home; and the children had head lice. Cole stipulated to those facts and that the children were dependent-neglected based on those facts.
On May 25, 2016, DHS filed a petition for emergency custody of J.P. J.P. was born on May 18, 2016, and DHS took a 72-hour hold on him on May 19; J.P. and Cole both tested positive for amphetamines when J.P. was born at thirty-six weeks. J.P. was taken to Arkansas Children's Hospital when he was born due to palate issues and an inability to keep formula down. An ex parte order of custody for J.P. was entered the same day; a probable-cause order was also entered, continuing J.P.'s custody with DHS. An adjudication order for J.P. was filed on August 15, 2016, adjudicating J.P. dependent-neglected due to his meconium testing positive at birth for methamphetamine and amphetamines and because his siblings were previously adjudicated dependent-neglected in April 2016; Cole stipulated to these facts and these findings. Review orders concerning all five children were entered in August and November 2016, with the orders continuing custody with DHS. A permanency-planning order was entered in February 2017; the goal was placement of the children with a parent, guardian, or custodian.
On May 2, 2017, DHS filed a petition to terminate parental rights. As to Cole, the grounds alleged for termination were twelve months out of custody and failure to remedy conditions that caused removal; other factors; and aggravated circumstances. On May 5, a fifteen-month review order was filed changing the goal of the case from reunification to termination of parental rights. On July 19, 2017, a hearing on DHS's petition to terminate parental rights was held after which the circuit court terminated Cole's parental rights as well as the parental rights of the children's legal fathers. The circuit court terminated Cole's parental rights on all three bases alleged by DHS in its petition.
Sufficiency of Evidence
Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the children. Norton v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 285. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood the juveniles will be adopted and of the potential harm caused by returning custody of the children to the parent. Id. Each step requires proof by clear and convincing evidence, which is the degree of proof that will produce in the finder of fact a firm conviction regarding the allegation sought to be established. Id.
Appellate review of termination-of-parental-rights cases is de novo, and our inquiry on appeal is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Wallace v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 376, 524 S.W.3d 439. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, a high degree of deference is given to the circuit court, as it is in a far superior position to observe the parties before it and to judge the credibility of witnesses. Id.
Argument
On appeal, Cole does not challenge the grounds for termination of her parental rights, nor does she make an argument regarding the potential-harm prong of the best-interest analysis. Her argument focuses solely on the circuit court's finding that the children are adoptable. While the likelihood of adoption must be considered by the circuit court, that factor is not required to be established by clear and convincing evidence, Holloway v. Arkansas Department of Human Services , 2017 Ark. App. 268, 520 S.W.3d 724 ; rather, the circuit court must merely consider the likelihood of adoption if parental rights are terminated. Canada v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 476, 528 S.W.3d 874. Setting the bar higher would unfairly punish special-needs children or developmentally disabled children needing permanency-especially if the behavior and development issues are a direct consequence of a parent's unfitness and inability to properly parent. Solee v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 640, 535 S.W.3d 687. Adoptability is not an essential element of proof, and proof of adoptability does not require DHS to provide names of specific adoptive parents or even to provide evidence it has identified such persons at the termination hearing. Canada , supra. The Juvenile Code does not require "magic words" or a "specific quantum" of evidence to support a circuit court's finding regarding adoptability; it only requires that if an adoptability finding is made, evidence must exist to support it. Solee, supra. A caseworker's testimony that a child is adoptable is sufficient to support an adoptability finding. Holloway, supra.
In support of her argument, Cole points to adoption specialist Anissa Ballew's testimony that an adoption-data match for the five siblings as a group indicated twenty-five potential matches, and another data match on J.P. alone indicated over 200 matches, even given evidence of his special needs (testimony at the termination hearing revealed J.P. has heart issues). Ballew testified that, based on those data matches, DHS believed the children are adoptable. However, Ballew also testified that other than J.P., none of the children had any severe medical concerns or behavioral concerns that would hinder their adoption. Cole made no objection to Ballew's testimony and did not cross-examine her. In its termination order, the circuit court stated it specifically considered the likelihood the children would be adopted in terminating Cole's parental rights, specifically Ballew's testimony that adoption-data matches indicated twenty-five matches for a sibling group of five and over 200 matches for J.P. alone.
Cole argues that the inconsistencies in Ballew's testimony clearly indicated Ballew was not familiar with the children's characteristics and that because Ballew was unaware of J.C.'s serious and extensive medical needs, the entirety of her data-match testimony was "wholly unreliable." Cole contends this inaccurate testimony, and the circuit court's reliance on such, mandates reversal on the adoptability prong of the best-interest analysis.
We do not find merit in Cole's argument. The record in this case is replete with evidence of J.C.'s special needs-Cole's lack of attention to those needs was one of the main reasons DHS became involved with her family in the first place. The circuit court heard voluminous testimony regarding J.C.'s special needs, and as the finder of fact, it was the circuit court's responsibility to sort out any contradictions in testimony. Clearly, the circuit court was aware J.C. has special needs. Essentially, Cole wants DHS to prove adoption is likely to occur. However, as discussed previously, DHS is not required to prove adoptability by clear and convincing evidence. There must be evidence presented that the children are adoptable, and it must be shown that the circuit court considered such evidence. The circuit court was entitled to rely on Ballew's testimony regarding adoptability, which it did, as evidenced by its finding in the termination order. The circuit court's finding the children are adoptable was not clearly erroneous.
Cole also argues that the CASA report recommended that S.M., L.M., and B.P.-Miguel Miranda's children with Cole-be placed in an adoptive home together, if possible, and that termination was not in the best interest of L.M., S.M., and B.P. when there was no meaningful effort to place those children with Miranda, who loved them and wanted custody of them. Cole lacks standing to challenge the termination of her parental rights based on alleged violations of Miranda's parental rights, which were also terminated. See Murphey v. Arkansas Dep't of Human Servs. , 2016 Ark. App. 430, 502 S.W.3d 544.
Affirmed.
Gruber, C.J., and Harrison, J., agree.
The parental rights of Miguel Miranda (legal father of S.M., L.M., and B.P.), Shaun Bridge (legal father of J.C.), and John Curtis Porter, Sr. (legal father of J.P.), were also terminated by this order. However, the fathers are not parties to this appeal.
J.P. was not yet born. | [
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RITA W. GRUBER, Chief Judge
Appellant Brian Smith entered a negotiated plea of guilty to the offenses of robbery and failure to appear on April 17, 2017. The Faulkner County Circuit Court entered a sentencing order that same day (1) reflecting that appellant had entered a plea of guilty to robbery, a class B felony, and failure to appear, a class C felony, and (2) imposing sentences of 360 months' imprisonment and 240 months' imprisonment, respectively. On appeal, he argues that his sentence of 240 months' imprisonment for failure to appear is illegal because his attorney's questioning of him at the sentencing hearing referenced failure to appear as a class D felony rather than a class C felony. We dismiss the appeal.
Generally, a defendant has no right to appeal from a guilty plea. Seibs v. State , 357 Ark. 331, 334, 166 S.W.3d 16, 17 (2004). Exceptions to this rule include (1) conditional guilty pleas, (2) when the issue on appeal is one of evidentiary errors that happened during the sentencing phase of the trial, or (3) the denial of a postjudgment motion to amend an incorrect or illegal sentence. Cummins v. State , 2013 Ark. App. 657, at 2, 2013 WL 5964606 ; see also Green v. State , 2017 Ark. 361, 533 S.W.3d 81 (reversing and remanding appeal from guilty plea after denial of postjudgment motion under Ark. Code Ann. § 16-90-111(a) (Repl. 2016) ). None of the exceptions apply in this case; accordingly, we dismiss the appeal.
Dismissed.
Abramson and Gladwin, JJ., agree.
Although the State has failed to challenge the propriety of the appeal, this is an issue of jurisdiction that this court will raise sua sponte. Wright v. State , 2009 Ark. App. 428, 2009 WL 1478255. | [
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RITA W. GRUBER, Chief Judge
Michelle Androff appeals from the circuit court's order terminating her parental rights to RA, born August 25, 2008. For reversal, Michelle argues (1) that DHS failed to present sufficient evidence to support the grounds for termination and (2) that the circuit court erred in terminating her parental rights where DHS offered insufficient evidence that termination was in RA's best interest. Because appellant's abstract fails to comply with Arkansas Supreme Court Rule 4-2, we order rebriefing.
Arkansas Supreme Court Rule 4-2(a)(5) provides that the appellant shall create an abstract of the material parts of all the transcripts in the record. Information in a transcript is material if the information is essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal. Ark. Sup. Ct. R. 4-2(a)(5). The rule specifically addresses the form to be used:
(B) Form. The abstract shall be an impartial condensation, without comment or emphasis, of the transcript (stenographically reported material). The abstract must not reproduce the transcript verbatim. No more than one page of a transcript shall be abstracted without giving a record page reference. In abstracting testimony, the first person ("I") rather than the third person ("He or She") shall be used. The question-and-answer format shall not be used. In the extraordinary situations where a short exchange cannot be converted to a first-person narrative without losing important meaning, however, the abstract may include brief quotations from the transcript.
Ark. Sup. Ct. R. 4-2(a)(5)(B) (emphasis added).
Here, a significant portion of appellant's 271-page abstract is in the question-and-answer format, which is expressly prohibited by our rules. Therefore, we order rebriefing.
Appellant has fifteen days from the date of this opinion to file a substituted brief, abstract, and addendum that complies with our rules. Ark. Sup. Ct. R. 4-2(b)(3) (2017). Failure to do so within the prescribed time may result in affirmance. Id. While we have noted the abstracting deficiency, we strongly encourage counsel to review the rules and to ensure that no other deficiencies are present before filing the substituted brief, abstract, and addendum.
Rebriefing ordered.
Whiteaker and Brown, JJ., agree. | [
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BRANDON J. HARRISON, Judge
Diane Pride appeals the Arkansas Board of Review's decision to deny her claim for unemployment benefits. The Board found that Pride's employer, Arkansas Children's Hospital, had followed its written attendance policy when it terminated her employment for excessive tardiness. Pride has numerous medical conditions, including diabetes, and she attributed some late arrivals to documented ill health. The Board found that "most of her instances of tardiness were the result of her illnesses," but Ark. Code Ann. § 11-10-514(a) (Supp. 2017) disqualified her for benefits because the hospital had a no-fault attendance policy.
Pride argues in her petition to this court that "my FMLA [Family Medical Leave Act] was approved and cured my tardiness." The record below shows that she pointedly raised the FMLA as her defense throughout the administrative hearing, which the hospital didn't attend. The hearing officer received as evidence "FMLA paperwork; two pages." The FMLA paperwork referenced by the hearing officer appears to be an employer-provided "certification of health care provider" from Pride's doctor. The certification states that Pride's medical conditions "may cause periodic work absences and tardiness." The hospital's attendance policy states in part that "[a]bsences or instances of lateness covered by employees' use of approved FMLA leave are not considered grounds for disciplinary action."
During the hearing, the officer also heard Pride say unequivocally that she believed FMLA excused some of the tardiness. And she said, among other things, that at least two hospital employees had told her that some of her tardiness was protected by the FMLA. The Board, however, made no factual findings related to Pride's FMLA status. Nor did it attempt to explain why the federal law didn't insulate Pride from a section 11-10-514(a) disqualification in this case.
We remand this case to the Board and direct it to address Pride's FMLA-based argument. E.g. , Ark. Okla. Gas Corp. v. Dir., Ark. Emp't. Sec. Dep't , 80 Ark. App. 251, 258, 94 S.W.3d 366, 370 (2002) (remanded for a finding on job suitability); Wigton v. Dir., Dep't of Workforce Servs. , 2013 Ark. App. 67, 2013 WL 458062 (remanded for additional factual finding regarding post-FMLA absences).
Reversed and remanded.
Hixson and Murphy, JJ., agree. | [
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DAVID M. GLOVER, Judge
Ginger Durham appeals the Chicot County Circuit Court's order quieting title to disputed property, specifically ownership of a boat dock, in appellees Al and Penny McCone. Ginger argues the circuit court erred in finding the McCones had proved a boundary by acquiescence. We affirm the circuit court's decision.
This case concerns the division of Lot 1 of Yellow Bayou Estates No. 2 in Chicot County, Arkansas. Glenn and Dee Atkins originally owned Lot 1; in May 1993, they sold the following part of Lot 1 to Joseph and Rowena James:
THE NORTH One-Half (1/2) of frontage of Lot One (1), Yellow Bayou Estates No. 2 as shown by Plat thereof found in Plat Book 2, Page 29, in the office of the Clerk and Ex-Officio Recorder for Chicot County, Arkansas, being the ½ of frontage nearest the bridge.
The Atkinses retained the remaining part of Lot 1, and both the Atkinses and Jameses built fishing cabins on their respective properties, jointly building a sewer-pump station to be maintained by both parties. In 1995, the Jameses sold their property to Jim and Tamera Gulledge by warranty deed that described the property sold as
The North One-half (N ½) (established by including one-half of road frontage) of Yellow Bayou Estates No. 2, as shown by the plat thereof prepared by G.E. Alexander, Jr., recorded January 4, 1991, at page 29 of Book 2 of the Plat Records of Chicot County, Arkansas.
In 2002, the Gulledges sold the property to Drew and May Plunkett; later in 2002, the Plunketts sold the property to Danny Joe and Ann Winchester. In 2008, the Winchesters sold the property to Scott and Ginger Durham. Pursuant to their 2013 divorce decree, Scott quitclaimed the property to Ginger.
The Atkinses retained their property until 2013, when they sold it to appellee Al McCone by warranty deed, which described the property as
THE SOUTH HALF (S ½) OF LOT ONE (1) OF YELLOW BAYOU ESTATES NO. 2 AS SHOWN BY PLAT THEREOF FOUND IN PLAT BOOK 2, PAGE 29 IN THE OFFICE OF THE CIRCUIT CLERK AND EX-OFFICIO
RECORDER FOR CHICOT COUNTY, ARKANSAS.
SUBJECT TO ALL EASEMENTS, RIGHTS OF WAY, AND PRIOR MINERAL RESERVATIONS AND CONVEYANCES OF RECORD.
In 2014, Ginger filed suit against appellees Al and Penny McCone, alleging disputes had arisen regarding the ownership of a boat dock Ginger claimed was located on her property and regarding the division of electric and water bills. The McCones answered the complaint and counterclaimed, alleging they were the owners of the property in question, and the boundary line had been established by either acquiescence or adverse possession; the deeds should be reformed to reflect as much; and there were agreements in place regarding water and sewer payments, which agreements should be enforced. The circuit court determined the boundary line between the properties had been established by acquiescence and quieted title to the property in the McCones. Ginger now appeals.
Standard of Review
Boundary-line cases are reviewed de novo. Whitecotton v. Owen , 2016 Ark. App. 120, 487 S.W.3d 380. However, our court will not reverse findings of fact unless they are clearly erroneous. Stadler v. Warren , 2012 Ark. App. 65, 389 S.W.3d 5. A finding of fact is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been committed. Id. Because the location of a boundary is a disputed question of fact, we will affirm the circuit court's finding unless it is clearly against the preponderance of the evidence. Whitecotton, supra . In reviewing a circuit court's findings of fact, we give due deference to the circuit court's superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Stadler, supra .
Hearing Evidence
At the hearing, Ginger testified she and Scott had purchased their property from Danny Winchester in 2008 by warranty deed, and Scott transferred the property to her by quitclaim deed pursuant to their divorce decree. She stated when she and Scott purchased their property, the property next door was vacant; since she owned her property, she had used the dock that is the subject of this litigation, having even hosted multiple family functions on the dock; she had never previously had issues using the dock; and she claimed the dock belonged to her, although she did not originally know where the specific boundary line was located. Ginger testified that the first time she was aware there was an issue with the boundary line was when Al McCone called her now deceased husband, Tony Hamil, and told him "not to step foot" on his property. After that, she had a survey performed that indicated the boundary line intersected the bayou on the east side of the dock, thereby placing the dock on her property; she placed a string marking where the survey indicated the property line was, which the McCones repeatedly took down; and the McCones posted a "no trespassing" sign on the dock. Prior to the lawsuit with the McCones, Ginger said she never had a reason to know where her property boundary was located, nor did she have a reason to make an agreement about where the boundary line should be.
On cross-examination, Ginger stated the house on her property was there when she purchased the property in 2008; Glynn Atkins owned the home next door; the dock was already built at the time she purchased her property; there was and still is a sewer pump on the premises; and there was a light pole near the crest of the bayou bank. However, she denied she had ever been told the boundary line between her property and the McCone property was the line between the sewer pump and the light pole. Ginger acknowledged the McCones demolished the Atkins home after they purchased the property; she further admitted she did not discuss the location of the boundary line with the McCones prior to 2014, when she had a survey performed.
Al testified he did not have his property surveyed when he purchased it from the Atkinses, but a survey performed later showed he owned what he was told was his property at the time of the purchase. Al stated the old Atkins house on his property had been damaged in a storm; it was too expensive to repair and was torn down; and a mobile home was placed on the property, although not in the same place as the old Atkins home because the mobile home was too long for that space. Al said Ginger's asserted boundary line would have gone through the middle of the old Atkins house, although it would not go through the mobile home because it was in a different location. Al testified he learned of the boundary dispute, including ownership of the dock, when Ginger emailed him a survey with a boundary line crossing his property.
On cross-examination, Al testified Ginger was the person who first showed him the north boundary of the Atkins property, telling him that the boundary line was from the telephone pole, across the top of the sewer system, and out to the road. He further testified that Ginger reiterated that the sewer system was the boundary line when she assisted him in measuring his property for placement of his new mobile home, and she never told him not to demolish the old Atkins home because it was on her property. In fact, while the contractor was tearing down the Atkins house, the water line was broken, and according to Al, Ginger called him and told him that his water line was broken and needed to be fixed. Al testified if the circuit court adopted Ginger's proposed boundary line, he would not have any usable bayou frontage, including the dock at issue.
Josh Martin, the surveyor who performed Ginger's survey, testified he performed the survey based on the property description found in the quitclaim deed from Scott to Ginger, not the property description contained in the deed from the Atkinses to the Jameses. Martin admitted that the conveyance from the Atkinses to the Jameses did not say "one-half of the lot" and that the survey he prepared based on one-half of Lot 1 was not consistent with the description conveyed from the Atkinses to the Jameses. Martin explained that monuments are anything that can be placed in the ground that can be found and used to measure property descriptions; he agreed that while the normal items used by surveyors were iron pins, a tank in the ground or a utility pole could also be used as a monument.
Drew McCord, the surveyor who performed a survey of the subject property on behalf of the McCones, testified he was hired to do a partition survey on Lot 1 according to the legal description of what Glenn Atkins intended the boundary line to be. McCord stated he did not find a deed description that fit the survey he made and that Glenn Atkins's intentions were not what was recorded at the time of the conveyance. McCord testified that his survey was performed to determine a legal description with two monuments serving as the boundary line between the properties; he further stated if the survey prepared for Ginger was used, the boundary line between the two properties on that survey would have dissected the old Atkins house.
Glynn Atkins, the original owner of both parcels of property, testified he sold a part of his property to the Jameses in 1993 and kept the remaining portion of the property. He explained that after the lot was divided, both he and the Jameses built fishing camps on their properties and installed a joint sewer system that could be run from either camp. Atkins testified the sewer system was placed on the boundary line between the two properties so there would be no question about where the boundary line was located, the sewer system was marked by a butane tank, and it had always been that way. Atkins further stated that back toward the bayou, he had placed a utility nightlight for the benefit of both parties. Atkins testified he built a dock on his side of the property line; Ginger had asked permission to use the dock, and he had allowed her to do so; Ginger mowed his grass in exchange for allowing her to use the dock; and he allowed other friends to use his dock as well. Atkins testified he never intended to part with any property south of the sewer-system boundary line; he never had any dispute with any of the subsequent purchasers of the James property regarding the boundary line until Ginger; everyone respected the boundary line except Ginger; when he sold his property to the McCones, he told them the boundary line was between the sewer system and the utility light pole; and when he sold his property to the McCones, he intended to sell them both his house and the dock.
Robert Toth, a friend of Al McCone's, testified that in 2013, he went with Al to the McCone property to measure and place the mobile home, and Ginger was present. Toth stated he heard Ginger tell Al that the sewer grinding tank was on his property but that the controls for the tank were on her property; they measured from the sewer system to see if the mobile home could be placed in that location; Ginger did not argue with where they were measuring; and he believed Ginger knew exactly where her property line was located, as she did not disagree with the property line from which they were measuring. Toth said there was not enough space between the two property lines to place the mobile home where Al initially wanted it, and Al had to move its location.
Appellee Penny McCone testified she and Al learned the Atkins property was for sale because Ginger told Penny's stepson about it; Ginger met them at the property and showed them the house; and Ginger showed them the location of the property line. Penny admitted a survey was not performed prior to purchasing the property, but they knew where the northern boundary of their property was located because Glynn Atkins and Ginger had told them. Penny said when the old Atkins house was torn down, they made renovations to the lot, including bringing in a load of sand to fill a hole caused by the demolition of the old house, and Ginger never told them not to make those changes. She also said she gave Ginger permission to use the dock.
Ginger was recalled as a rebuttal witness. She denied any discussion of the boundary line was had when Al and Toth took measurements to place the mobile home; she had never heard anyone refer to the septic-tank grinder or the utility pole as boundary lines between the properties; and she denied she had ever sought permission from anyone to use the dock, stating she had simply used the dock continuously since the time she had purchased her property.
The oral depositions of Rowena James and Scott Durham were also introduced into evidence. James testified that her late husband, Joseph James, was a friend of Glynn Atkins; Atkins sold them some property in 1993; and both couples built camp houses on their properties. Rowena testified Glynn Atkins built a dock; while she stated that she did not know where the boundary line was located, she knew it did not run through the Atkins house and that Atkins would not have built his house on their property.
Scott testified the only discussion he had of the boundary line between the properties was with Glynn Atkins, and when he asked Atkins where the property line was located, Atkins told him the line was from the center of the sewer system to the utility pole. Scott testified he and Ginger respected that line as the boundary between their property and the Atkins property. Scott further testified he and Ginger used Glynn Atkins's dock; Atkins did not mind that they used the dock; in return they kept his yard mowed; and he (Scott) never believed the dock belonged to him. Scott denied he and Ginger had purchased the Atkinses' dock.
The circuit court found a boundary by acquiescence had been established between the two properties, which was the line between the sewer system and the utility pole. The circuit court specifically found, "The evidence ... is overwhelming that the boundary was recognized, considered and agreed upon by the original grantor, Mr. Atkins, and that the land marks were identified. Further, it has never been the intent by Mr. Atkins to convey any property to Ms. Durham south of the recognized boundary line." The circuit court dismissed Ginger's petition and quieted title in the property, including the boat dock, in the McCones.
Boundary by Acquiescence
In Myers v. Yingling , 372 Ark. 523, 527, 279 S.W.3d 83, 87 (2008), our supreme court held, "Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and thus apparently consent to that line, it becomes the boundary by acquiescence." A boundary line by acquiescence is inferred from the conduct of the landowners over many years that implies the existence of an agreement about the location of the boundary line; in such circumstances, the adjoining landowners and their grantees are precluded from claiming that the boundary so recognized and acquiesced in is not the true one, although it may not be. Clark v. Caughron , 2017 Ark. App. 409, 526 S.W.3d 867. A boundary by acquiescence is usually represented by a fence, a turnrow, a lane, a ditch, or some other monument tacitly accepted as visible evidence of a dividing line. Brown v. Stephens , 2009 Ark. App. 614, 2009 WL 3029308. A boundary line by acquiescence may exist without the necessity of a prior dispute. Myers, supra .
Ginger argues there was insufficient evidence of a physical boundary line as well as insufficient historical usage of such a boundary so as to establish a boundary by acquiescence. She first complains the circuit court's order mentions only two reference points-the light pole and the sewer pump-with regard to the entire boundary, and such evidence is insufficient to conclude those two points had any significance as an established boundary. She further argues that there was no evidence of usage by the parties that would establish that the sewer system and the light pole were the boundary line.
We disagree with both of her arguments. First, a boundary by acquiescence may be represented by monuments tacitly accepted as visible evidence of a dividing line. Brown, supra . Josh Martin, Ginger's surveyor, testified monuments are identifiable items placed in the ground that could be found and used to measure property descriptions. During his testimony, Martin agreed a tank in the ground or a utility pole, the items that formed the boundary line between the properties in this case, could be used as monuments. In Disney v. Kendrick , 249 Ark. 248, 458 S.W.2d 731 (1970), a boundary by acquiescence was affirmed when the parties tacitly agreed on a line running between two concrete stobs. Here, the monuments were identifiable, and all property owners prior to Ginger's sole ownership agreed that the sewer system and the utility pole formed the boundary line between the two properties. Furthermore, there is no requirement of adverse usage to the boundary in order to establish a boundary by acquiescence. Myers, supra . In the present case, with the exception of Ginger, the present and prior property owners who testified stated that the sewer system and the utility pole were understood to form the boundary line between the properties. The circuit court's decision was not clearly against the preponderance of the evidence; therefore, it is affirmed.
Affirmed.
Abramson and Vaught, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
Appellants Ashley Smith and Archie Coats, Jr., appeal separately from the termination of their parental rights to their son, P.S., born May 17, 2013. Appellants' respective attorneys have each filed a no-merit brief and motion to withdraw as counsel pursuant to Linker-Flores v. Arkansas Department of Human Services , 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), asserting that there are no issues that would support a meritorious appeal. Counsel's briefs contain an abstract and addendum of the proceedings below, detail all adverse rulings made at the termination hearing, and explain why there is no meritorious ground for reversal. The clerk of this court sent copies of the briefs and motions to withdraw to appellants, informing them of their right to file pro se points for reversal. Neither has done so. We affirm the orders terminating Smith's and Coats's parental rights, and we grant their attorneys' motions to withdraw as counsel.
P.S. was taken into custody by the Arkansas Department of Human Services (DHS) in January 2016 after he was admitted to Arkansas Children's Hospital with what appeared to be second-degree burns from his waist down to his feet. The circuit court entered an emergency order followed by an order finding that probable cause existed to remove P.S. and to maintain him in DHS custody.
The adjudication hearing took place on March 30, 2016. At the hearing, Dr. Rachel Clingenpeel, a physician at Arkansas Children's Hospital, testified that P.S. had second-and third-degree burns and that in her opinion, he was forcibly submerged in hot water because the burn patterns presented clean edges around his waist, and his knees and hands were not burned, which demonstrated he was in a retracted seated position when placed into the water. She said that if he had fallen into the water, as Smith indicated, he would have thrashed around and had burns on his knees and hands, as well as splash burns on his body. At the conclusion of the adjudication hearing, the court entered an order finding by clear and convincing evidence-a higher burden than what is required under the Juvenile Code-that P.S. was dependent-neglected due to physical abuse, neglect, and parental unfitness by Smith. The court further found that P.S. was subjected to nonaccidental physical injuries by Smith, that Smith failed to seek appropriate medical treatment for P.S. because she did not want DHS in her life, and that P.S. received treatment only because Smith had summoned emergency help for herself several hours later (when she was having an anxiety attack). The court concluded that these facts constituted extreme cruelty and, thus, aggravated circumstances. Smith did not file an appeal from that order.
On August 18, 2017, DHS filed a petition for termination of parental rights on the basis of three grounds: failure to remedy, subsequent factors, and aggravated circumstances. The court held a hearing on the petition on September 27, 2017. At the conclusion of the hearing, the circuit court took the case under advisement. On November 3, 2017, the circuit court entered an order granting DHS's petition to terminate appellants' parental rights on all three grounds. The parents' separate notices of appeal followed.
Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark. Dep't of Human Servs. , 2016 Ark. App. 227, at 2, 491 S.W.3d 153, 155. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(B), (A) (Repl. 2015). Each of these requires proof by clear and convincing evidence, which is the degree of proof that will produce in the finder of fact a firm conviction regarding the allegation sought to be established. Watson v. Ark. Dep't of Human Servs. , 2017 Ark. App. 484, 529 S.W.3d 259.
We review termination-of-parental-rights cases de novo. Dunbar v. Ark. Dep't of Human Servs. , 2016 Ark. App. 472, at 9, 503 S.W.3d 821, 827. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Norton v. Ark. Dep't of Human Servs. , 2017 Ark. App. 285, at 2. In resolving the clearly erroneous question, the reviewing court defers to the circuit court because of its superior opportunity to observe the parties and to judge the credibility of witnesses. Brumley v. Ark. Dep't of Human Servs. , 2015 Ark. 356, at 7.
In dependency-neglect cases, if, after studying the record and researching the law, appellant's counsel determines the appellant has no meritorious basis for appeal then counsel may file a no-merit petition and move to withdraw. Poss v. Ark. Dep't of Human Servs. , 2014 Ark. App. 514, 443 S.W.3d 594. The petition must include an argument section that lists all adverse rulings the parent received at the circuit court level and explain why each adverse ruling is not a meritorious ground for reversal. Id. The petition must also include an abstract and addendum containing all rulings adverse to the appealing parent that were made during the hearing from which the order on appeal arose. Id. Appellants' respective attorneys have each determined there are no meritorious bases for appeals in this case. We agree.
I. Ashley Smith
Smith's counsel explains that other than the termination itself, there technically were no adverse rulings. However, "out of an abundance of caution," counsel addressed two additional rulings that could be considered adverse. The first was the circuit court's denial of P.S.'s placement with the juvenile's grandmother, Ms. Parker, which occurred at a prior hearing but was referenced at the termination hearing. The second was the circuit court's statement that it could draw a negative inference about Smith's culpability with regard to P.S.'s injuries after Smith asserted her Fifth Amendment privileges against self-incrimination. Counsel further explained why a challenge to the sufficiency of the evidence supporting the termination would not provide a meritorious argument for reversal.
As we have noted, only one ground must be proved to support termination. See, e.g. , Reid v. Ark. Dep't of Human Servs. , 2011 Ark. 187, 380 S.W.3d 918. On March 30, 2016, the circuit court adjudicated P.S. dependent-neglected based on aggravated circumstances. That finding was never appealed. One of the grounds the court found in its termination of Smith's parental rights-which is now properly before this court-is also aggravated circumstances. In termination cases, we have made clear that a challenge to a prior finding of abuse or aggravated circumstances must be made, if at all, in an appeal from the adjudication hearing. See Hannah v. Ark. Dep't of Human Servs. , 2013 Ark. App. 502 ; see also Dowdy v. Ark. Dep't of Human Servs. , 2009 Ark. App. 180, 314 S.W.3d 722. Therefore, the aggravated-circumstances finding stands, and there can be no challenge to the ground of aggravated circumstances at this stage of the case. Because only one ground is needed for termination, it is unnecessary to address the other two grounds also found by the circuit court. See Draper v. Ark. Dep't of Human Servs. , 2012 Ark. App. 112, 389 S.W.3d 58.
In addition to finding a statutory ground for termination, an order terminating parental rights must also be based on clear and convincing evidence that the termination is in the child's best interest. Id. When making a best-interest determination, the circuit court must consider the likelihood the child will be adopted and the potential harm he would face if returned to the parents. Id. Potential harm must be viewed in a forward-looking manner and considered in broad terms. Dowdy , 2009 Ark. App. 180, 314 S.W.3d 722.
In the instant case, the DHS adoption specialist testified that P.S. was adoptable. The specialist said she took into account P.S.'s medical needs, his attachment disorder, and all of his characteristics. She said there were no barriers to adoption. That testimony was not challenged. With respect to potential harm, the same facts supporting the aggravated-circumstances ground for termination support the circuit court's conclusion that the return of P.S. to Smith would result in harm to him. Consequently, the circuit court's best-interest finding provides no meritorious basis for reversal.
In an abundance of caution, Smith's counsel addressed the following two rulings, which provide no basis for reversal. In regard to the court's denying the placement of P.S. with his grandmother, the court is permitted to set termination as the goal unless the child is being cared for by a relative, the relative has made a long-term commitment to the child, and termination is not in the child's best interest. See Elliott v. Ark. Dep't of Human Servs. , 2017 Ark. App. 672, 536 S.W.3d 642. Here, however, P.S. was not being cared for by his grandmother, and the court, at a prior hearing, had already heard evidence pertaining to whether the placement should occur and entered a permanency-planning order on August 2, 2017, finding that it should not. That order was not appealed, and Smith did not ask to relitigate that at the termination hearing. Therefore, it presents no meritorious issue for an appeal now. In regard to the court's drawing a negative inference when Smith asserted her Fifth Amendment privilege against self-incrimination, any potential error in the court's actions had no bearing on the outcome of the case. Therefore, the question whether the court could draw a negative inference from an assertion of the Fifth Amendment privilege does not need to be answered here as it cannot provide a meritorious basis for reversal.
II. Archie Coats, Jr.
The previously recounted facts and discussions also pertain to Coats. The sole adverse ruling concerning Coats was the termination of his parental rights. The circuit court terminated Coats's parental rights on three statutory grounds: failure to remedy, subsequent factors, and aggravated circumstances. When P.S. was removed from Smith's home in January 2016, Coats and Smith were not living together, and although Coats was not the cause for removal, P.S. could not be placed with him. The circuit court ruled in the February 2016 probable-cause order that it was contrary to P.S.'s welfare to be in either parent's custody and ordered the following services for Coats: random drug screens, a drug-and-alcohol assessment, a counseling assessment, a psychological evaluation, and parenting classes. The court also directed Coats to maintain stable housing, employment, and income; remove pictures of P.S. from a GoFundMe website; and inform DHS if he changed jobs or addresses. In the March 2016 adjudication order, the circuit court warned Coats, "If he wants to be part of his child's life, he needs to put down the drugs. If he wants any chance to be taken seriously, he must make a choice. He can use drugs, but he will not raise this child if he does."
Coats tested positive for cocaine and marijuana at his first visit to Recovery Centers of Arkansas on February 16, 2016-fifteen days after the probable-cause order was entered. He tested positive for the same drugs in May 2016 and for marijuana in June 2016. In April, May, June, and July 2017, he tested positive for various drugs, including cocaine and PCP. He also tested negative, however, several times between March and July 2017. But he did not complete the initial recommended drug treatment. Nor did he start the treatment that was recommended in June 2017. Coats failed to comply with the court's order in other respects too. He did not complete the psychological exam. He did not complete counseling. He did not maintain stable employment or housing.
Failure to comply with a case plan, continued drug use, and instability are enough to find a failure to remedy. See, e.g. , Hall v. Ark. Dep't of Human Servs. , 2018 Ark. App. 4, at 3-4 ; Wingate v. Ark. Dep't of Human Servs. , 2017 Ark. App. 662, at 6. Coats failed to comply with court orders and failed to use services that DHS offered. This is sufficient evidence to support termination on either the failure-to-remedy ground or the subsequent-factors ground. See Clements v. Ark. Dep't of Human Servs. , 2013 Ark. App. 493. On this record, we conclude that the circuit court did not clearly err in finding that these statutory grounds existed.
In addition, the best-interest finding by the circuit court provides no meritorious basis for reversal. DHS established that P.S. was adoptable. As for potential harm, the facts, as explained above, including Coats's continued drug use and failure to follow court orders, are more than enough to prove potential harm. See, e.g. , Ozuna v. Ark. Dep't of Human Servs. , 2015 Ark. App. 381, at 8-9, 466 S.W.3d 434, 439-40.
III. Conclusion
From our review of the record and the briefs presented to us, we conclude that counsel have complied with the requirements for no-merit appeals and that the appeal is wholly without merit. Accordingly, we affirm the termination order and grant counsel's motions to withdraw.
Affirmed; motions to withdraw granted.
Glover and Vaught, JJ., agree. | [
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JOHN DAN KEMP, Chief Justice
Appellant Sammy Earl Stewart filed a petition, denied by the trial court, requesting that the court reconsider and/or modify the sentence imposed in his criminal case. Stewart appeals the adverse decision, and we affirm because the trial court correctly found it did not have the authority to grant the relief that Stewart requested.
The judgment at issue was entered in 1997. Generally speaking, absent a statute, rule, or available writ, once the circuit court enters a judgment-and-commitment order, jurisdiction is transferred to the executive branch of our government. Whitney v. State , 2018 Ark. 21, 535 S.W.3d 627. Without an exception as noted, the trial court lacks subject-matter jurisdiction of the case. Id. We have long held that a trial court loses jurisdiction to modify or amend an original sentence once the sentence is put into execution. Id. Because Stewart is incarcerated in the Arkansas Department of Correction, there is no question that his sentence has been placed into execution. Johnson v. State , 2012 Ark. 212.
A circuit court's decision to deny relief under Arkansas Code Annotated section 16-90-111 (Repl. 2016) will not be overturned unless that decision is clearly erroneous. Green v. State , 2017 Ark. 361, 533 S.W.3d 81. Stewart requested a hearing "to make the court aware of new and mitigating circumstances." The trial court found that it could not consider the request to modify Stewart's sentence because more than sixty days had passed since entry of the mandate affirming Stewart's conviction and sentence. Stewart contends on appeal that the court should have considered the petition under section 16-90-111, that there was no time limitation, and that, if granted a hearing, he would have set out claims of ineffective assistance of counsel during his trial proceedings as "mitigating circumstances."
An appellant may not change the grounds for his or her argument on appeal and is instead limited to the scope and nature of the objections presented at trial.
Stover v. State , 2017 Ark. 66, 511 S.W.3d 333. We have held that even a constitutional argument must be raised to the circuit court and ruled upon in order to preserve the issue for appellate review. Id. Stewart's claims in the petition did not include any issue of ineffective assistance of counsel. Even if Stewart's request that the trial court consider "mitigating circumstances" in order to modify his sentence could be construed broadly enough to encompass claims of ineffective assistance of counsel, Stewart still failed to bring his request in a timely petition that the trial court could have considered.
Section 16-90-111 allows the trial court to correct an illegal sentence at any time because a claim that a sentence is illegal on its face presents an issue of subject-matter jurisdiction. Latham v. State , 2018 Ark. 44. A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. Id. The time limitations on filing a petition under section 16-90-111 on the ground that the sentence was imposed in an illegal manner, however, are superseded by Arkansas Rule of Criminal Procedure 37.2(c), and if the time for relief under Rule 37.2 has expired, section 16-90-111 provides no relief for claims that a sentence was illegally imposed. Id.
Stewart's allegations in the petition raised no issue of an illegal sentence. He did not question the legality or validity of the sentence in his petition. Stewart appealed his judgment, and this court affirmed. Stewart v. State , 331 Ark. 359, 961 S.W.2d 750 (1998). Under the then-applicable rules for postconviction relief, Stewart was required to bring a claim that his sentence was imposed in an illegal manner in a Rule 37.1 petition filed no later than sixty days after the date the mandate was issued by the appellate court. Ark. R. Crim. P. 37.2(c) (1997). In this case, the mandate issued on March 3, 1998, and Stewart filed his petition to modify the sentence in 2017-more than nineteen years after the mandate issued and well outside the sixty-day period for the relief he sought. Stewart's petition set out no basis for the court to grant the relief he requested, and there was therefore no clear error in the trial court's denial of relief.
Affirmed.
Hart, J., concurs.
Josephine Linker Hart, Justice, concurring.
The circuit court was correct when it determined that it had no jurisdiction to entertain Mr. Stewart's motion to modify his sentence. In his petition to the circuit court, Mr. Stewart failed to allege that his sentence was "illegal." The law in this state is clear that once a valid sentence is placed into execution, the circuit court loses jurisdiction to modify that sentence. Green v. State , 2017 Ark. 361, 533 S.W.3d 81. However, if the sentence imposed is not a valid sentence, Arkansas Code Annotated section 16-90-111 provides the vehicle for an inmate to challenge that sentence. Accordingly, the majority's discussion of procedural bars in this case is unnecessary and untenable.
There is simply no basis for the majority's assertion that Mr. Stewart has changed his argument on appeal. Although Mr. Stewart did not cite section 16-90-111 in his petition, the circuit court obviously understood that was the statute he was proceeding under, and it ruled accordingly. | [
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KAREN R. BAKER, Associate Justice
This is an appeal from the dismissal of appellant Taurin A. Johnson's pro se petition for a writ of habeas corpus wherein Johnson alleged that his life sentence is illegal pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which declared that mandatory life sentences are unconstitutional when the defendant is a juvenile at the time the offense is committed. Pending before this court is Johnson's pro se motion to file a belated brief.
An appeal from an order that denied a petition for postconviction relief, including an appeal from an order that denied a petition for a writ of habeas corpus, will not be permitted to go forward when it is clear that the appellant could not prevail. Perry v. State , 2018 Ark. 14, 535 S.W.3d 264. Because it is clear from the record that Johnson cannot prevail, this appeal is dismissed, which renders the motion moot.
Under our statute, a petitioner for the writ who does not allege his or her actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he or she is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016); Garrison v. Kelley , 2018 Ark. 8, 534 S.W.3d 136. In his pro se petition for writ of habeas corpus, Johnson averred that he had pleaded guilty to first-degree murder and attempted first-degree murder and was sentenced to life imprisonment for the murder conviction. Johnson contended that because he was seventeen when he committed first-degree murder, his life sentence is void pursuant to the holding in Miller . Johnson attached to his petition a file-marked copy of his judgment of conviction. The face of the judgment establishes that Johnson was born on August 11, 1975, and was under the age of eighteen when he committed the crime on January 21, 1993.
In Miller , 567 U.S. 460, 132 S.Ct. 2455, the United States Supreme Court held that a mandatory sentence of life imprisonment without the possibility of parole imposed on a defendant who was a juvenile when the offense was committed violates the prohibition on cruel or unusual punishment contained in the Eighth Amendment to the United States Constitution. However, when Johnson committed the offense, first-degree murder did not carry a mandatory sentence of life without parole. Rather, first-degree murder was classified as a Y felony that carried a sentence of not less than ten years nor more than 40 years or life. See Ark. Code Ann. §§ 5-10-102 & 5-4-401 (Repl. 1993). Thus, Johnson's life sentence was discretionary, and Johnson makes no other allegations challenging the legality of the sentencing proceedings following his guilty plea. Because a life sentence for the crime of first-degree murder was not mandatory, the holding in Miller is not applicable and does not render Johnson's life sentence facially illegal. See Brown v. Hobbs , 2014 Ark. 267, 2014 WL 2566091.
Further, we note that "in the Fair Sentencing of Minors Act of 2017, the Arkansas General Assembly amended Arkansas Code Annotated section 5-10-102 to provide that persons who were under the age of eighteen when they were convicted of first-degree murder shall be eligible for parole after serving a minimum of twenty-five years' imprisonment. Ark. Code Ann. § 5-10-102(c)(2) (Supp. 2017). The Act also amended Arkansas Code Title 16, Chapter 23, Subchapter 6 to provide that minors who were convicted of first-degree murder and sentenced prior to the passage of the Act are eligible for parole after twenty-five years of incarceration. Ark. Code Ann § 16-93-621(a)(2)(A) & (B) (Supp. 2017). The provisions make no distinction between life sentences that are mandatory and those that are discretionary." Lohbauer v. Kelley , 2018 Ark. 26, at 4-5, 2018 WL 654508. Because Johnson's sentence of life imprisonment now carries with it the possibility of parole, his contention that his sentence violates the requirements of Miller is incorrect. Accordingly, the circuit court did not err in dismissing his petition for writ of habeas corpus.
Appeal dismissed; motion moot.
Hart, J., concurs.
Mr. Johnson's appeal should be dismissed because he failed to timely file his brief, and he failed to allege good cause for this court to accept a late filing. However, I oppose "dismissing" Mr. Johnson's appeal on the merits before his brief has been filed. All this court had before it was Mr. Johnson's pro se motion for an extension of time to file his brief, therefore Mr. Johnson had not perfected his appeal, and it is improper for this court to decide-and dismiss-his case.
As I noted in Garrison v. Kelley , 2018 Ark. 8, 534 S.W.3d 136 (Hart, J., dissenting), deciding an appellant's appeal-on the merits-before his or her brief has even been accepted by the court is, in effect, an unconstitutional denial of Mr. Johnson's access to the courts. I am mindful that this practice has become routine when pro se appeals are filed by incarcerated persons. However, I refuse to engage in a practice that, in my view, does not comport with the constitution.
Furthermore, in this case, the majority's rationale for skipping over Mr. Johnson's failure to perfect his appeal to decide that he could "not prevail" is dubious at best. The circuit court's August 16, 2017 order purported to dismiss Mr. Johnson's habeas petition, in pertinent part, because "Act 539 cures any violations by the State." The circuit court was referring to Act 539 of 2017, the Fair Sentencing of Minors Act. In "dismissing" Mr. Johnson's appeal, the majority relies on this court's February 1, 2018 decision, Lohbauer v. Kelley , 2018 Ark. 26, 2018 WL 654508, which was handed down nearly a month after Mr. Johnson's brief was due, and for which the mandate did not issue until March 29, 2018. In essence, the majority has concluded that Mr. Johnson's appeal should not go forward because he failed to predict what this court would say in Lohbauer .
Moreover, Lohbauer is not quite the unassailable precedent that the majority implies. In Lohbauer , a divided court affirmed the denial of a habeas petition that was virtually identical to Mr. Johnson's. Five justices in Lohbauer , including one who dissented and one who concurred, agreed with language-arguably dicta -to the effect that the parole-eligibility provisions in the Fair Sentencing of Minors Act, codified as Ark. Code Annotated section 16-93-621(a)(2)(A) (Supp. 2017), acted to modify a facially valid sentencing order-issued by a court-in a way that completely bypasses the judiciary. I doubt that this scheme comports with the separation of powers.
I concur.
Johnson was sentenced to a concurrent sentence of 360 months for attempted murder. | [
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RAYMOND R. ABRAMSON, Judge
Appellant Kevin Sandy appeals the decision of the Arkansas Board of Review (Board) that reversed the Appeal Tribunal's (Tribunal) decision to grant unemployment benefits. The Tribunal found that Sandy's actions leading to his discharge did not constitute misconduct. The Board reversed the Tribunal's decision on the basis that Sandy intentionally disregarded the employer's interest, warranting denial of unemployment benefits. We disagree with the Board and reverse and remand.
Sandy began working for the City of Fort Smith (the City) on August 28, 1989. He received several promotions during his employment and last served as the deputy director of business administration. He was discharged on January 23, 2017. The City cited the following reasons for his discharge: Sandy (1) failed to provide a password when requested by the employer's internal audit, (2) failed to follow procedures in processing a purchase request and a bond-reimbursement request, (3) removed a computer from one of the City's locations and took it to another location without permission, and (4) failed to approve a fuel-purchase request in a timely manner. The City did not administer any disciplinary action against Sandy during his twenty-seven-year tenure aside from his discharge. Sandy testified that the incidents cited by the City were miscommunications, erroneous assumptions about his actions, and the result of procedural and policy changes that were not made known to him.
The Tribunal concluded that the City did not prove by a preponderance of the evidence that Sandy's conduct constituted misconduct. The Board reversed on the basis that Sandy intentionally disregarded the City's interest when he did not give a password to an internal auditor and when he did not approve a fuel-purchase request.
The standard of review is well settled. We do not conduct de novo review in appeals from the Board. Whitmer v. Dir. , 2017 Ark. App. 367, 525 S.W.3d 45. Instead, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings of fact. Id. The Board's findings of fact are conclusive if supported by substantial evidence, which is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
Id. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could have reasonably reached the decision rendered based on the evidence presented. Id.
A claimant is disqualified from receiving unemployment benefits if the claimant is discharged from his or her last work for misconduct in connection with the work. Ark. Code Ann. § 11-10-514(a) (Supp. 2017). Misconduct includes the violation of any behavioral policies of the employer, disregard of the employer's rules, disregard of the standards of behavior that the employer has a right to expect from its employees, and disregard of the employee's duties and obligations to his or her employer. Rockin J Ranch, LLC v. Dir. , 2015 Ark. App. 465, 469 S.W.3d 368. Whether an employee's behavior is misconduct that justifies the denial of unemployment benefits is a question of fact for the Board to decide. Id. There is an element of intent associated with a determination of misconduct. Id.
Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion do not constitute misconduct. Follett v. Dir. , 2017 Ark. App. 505, 530 S.W.3d 884. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Id. It is the employer's burden to establish misconduct by a preponderance of the evidence. Id.
In Whitmer , supra , the claimant was discharged after her incarceration caused her to miss work and was denied unemployment benefits. Id. She did not have any other problems with her attendance, and she had not received any disciplinary notices. Id. There, we held that this single instance of absence does not rise to the level of willful disregard of her employer's interest or indicate sufficient intent. Id. We reversed the denial of unemployment benefits because substantial evidence did not support the Board's ruling. Id.
In Follett , supra , a claimant was denied unemployment benefits when she was discharged for refusing to sign a reprimand. The claimant was reprimanded for failing to properly clean a milk pitcher, and she denied that she had failed to clean the pitcher. Id. She refused to sign the reprimand, and her employer discharged her. Id. The Board found that this refusal to sign the reprimand constituted misconduct, and we reversed the Board because there was no policy against refusing to sign a reprimand, and she was never informed that refusing to sign a reprimand would result in disciplinary action. Id. We held that under these circumstances, substantial evidence did not support a finding of misconduct.
In the present case, the Board based its finding of misconduct on the instances of Sandy's failure to provide a password to an internal auditor and his failure to timely process a fuel request. The Tribunal found that the facts supported a finding that these instances were merely the result of miscommunications, erroneous assumptions about his work, and new policies that were not known to Sandy. The evidence relied on by the Board merely shows that two tasks were not completed to the City's satisfaction. As we have said, mere inefficiency and unsatisfactory conduct do not constitute misconduct that will disqualify a claimant from unemployment benefits. The City has not presented evidence that Sandy intended to disregard his employer's interest. There is no evidence that he knew his actions were in disregard of his employer's interest as there was no policy he knew of prohibiting his actions, and he had not previously been disciplined for those actions. Simply put, the City did not present any evidence that Sandy engaged in misconduct, because none of Sandy's actions allow a reasonable person to find that he disregarded his employer's interests. Therefore, substantial evidence does not support the Board's finding that Sandy engaged in misconduct.
Since substantial evidence does not support the Board's finding, we reverse and remand for an award of benefits.
Reversed and remanded.
Gruber, C.J., and Klappenbach, J., agree. | [
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RITA W. GRUBER, Chief Judge
Appellants Arkansas Department of Correction (ADC) and Arkansas Insurance Department Public Employee Claims Division appeal from a decision of the Arkansas Workers' Compensation Commission (Commission) adopting the decision of the administrative law judge (ALJ) finding appellee Franklin Clary had proved that he sustained a compensable left-knee injury and ordering appellants to pay medical expenses and temporary-total disability benefits (TTD). The only issue on appeal is whether substantial evidence supports the Commission's decision. We affirm.
At the time of the injury, appellee worked as a correctional officer at the ADC. He testified that on Saturday, November 21, 2015, he was escorting a prisoner downstairs along with his supervisor, Sgt. Kevin Nunnery, when he felt a "pop" in his left knee. He described how they stopped for a minute, he rubbed his left knee, Sergeant Nunnery looked at him, and then they proceeded to take an inmate to the shower. He testified that he told Sergeant Nunnery about his knee popping at that time and indicated that it was protocol to inform the supervisor, but he did not mention it again because they were shorthanded and he was trying to finish his shift. While appellee knew that an incident report needed to be filed, he explained that they were shorthanded and busy at the time of the incident so he continued working. He worked the entire shift but switched with other officers in the control booth three times to get off his knee. Appellee went home, iced his knee, and took ibuprofen.
When he went to work the next day, he could walk, but his knee was swollen and sore. He stated that he was assigned to the control booth that day and reported to Lt. Nicola Kelly. He testified that he and Lieutenant Kelly discussed the upcoming Thanksgiving potluck and that he told her he was glad to be in the control room because his knee was swollen from working on Saturday. Appellee stated that Lieutenant Kelly did not offer him workers' compensation paperwork, nor did he ask for medical treatment because he did not know the severity of his injury at that time. Appellee knew Sunday evening when he got home that he needed to see a doctor because his knee was hard to bend. On Monday morning, he saw Dr. Kirk Reynolds, an orthopedic surgeon whom he had previously seen. Dr. Reynolds drew fluid off the left knee and ordered work restrictions of no bending and minimal standing. Appellee did not call appellant on Monday morning when he realized it was a workers' compensation claim because he knew he had to give the work restrictions to his supervisor, and he was not scheduled to work again until Wednesday, November 25.
When appellee went to work on Wednesday, Lieutenant Kelly sent him home because there was no light duty within his restrictions. Later that day, he called human resources to ask about the 005-incident report, returned to complete it, and gave it to Lieutenant Kelly. Appellee testified that his claim was denied and he sought treatment on his own. He had surgery on December 8 and was released by Dr. Reynolds to work with no restrictions on January 18, 2016. His last day to work for appellant was November 22, 2015, as he was terminated on December 29, 2015. After he was released to work, appellee began to work for Loomis, an armored-car company.
Sergeant Nunnery testified at the hearing before the ALJ. He explained that at the beginning of each day there was a short meeting where he received assignments from the lieutenant and found out which six officers he would supervise that day. He would see those officers at the meeting and several times during the shift, and all had radios to communicate if they needed assistance or had an incident. He explained that taking the inmates to the showers was part of the duties he would have done with appellee, as it requires two officers for one inmate. Sergeant Nunnery did not remember appellee reporting an injury to his knee. If an injury had been reported, he explained that he would have gone straight to the lieutenant, called the company nurse, and completed the paperwork.
In his six or seven years as a sergeant and his thirteen years working for the ADC, Sergeant Nunnery had never reported an injury. He did not recall if they were busy that day, but he stated that Saturdays were busy with showers and visitation all day and that they were usually shorthanded. Sergeant Nunnery did not recall appellee going to the control booth that day, but indicated that they often traded out to give the officer on the floor some relief as it was usually busy. He testified that he would not file an incident report if someone told him his or her knee had "popped" like an ordinary joint pop and did not need medical attention. He would file a report if someone told him his knee had "popped out." He testified that if his knee had popped and had a bit of soreness, he would not report that for himself.
The last witness to testify at the hearing was Lieutenant Kelly, who was supervisor over the entire shift. She had been in her current position for about two years and had been a sergeant the previous seven years. During these years as a supervisor, she had reported several workplace injuries. She explained that the procedure was to notify her as the supervisor, complete a urinalysis, and call the company nurse to report. At that point, the nurse would give a confirmation number and send the worker for either medical attention or back to work. The injured employee was required to fill out the form 005, which could be signed by the sergeant but ultimately was signed by the lieutenant.
Lieutenant Kelly was working on Saturday, November 21, and Sunday, November 22. She recalled appellee reporting an injury to her on Wednesday, November 25, when he was scheduled to return to work. She questioned appellee as to why he did not report the injury, but he stated that he had reported it to his sergeant. Lieutenant Kelly explained that if appellee was working with Sergeant Nunnery at the time of his injury, it was the sergeant's responsibility to have the officer complete the incident report and to notify the lieutenant. The lieutenant would then bring the injured employee to the office and call the company nurse. She indicated that appellee likely worked the control booth on Sunday, November 22, as he had worked there numerous times. It was a standing job requiring the officer to move side to side between two control panels. She did not consider it to be lighter work, but it did not require walking all over the prison or up and down stairs. She acknowledged that sometimes there might be a chair in the control booth, but that the job mostly required standing.
Lieutenant Kelly recalled talking to appellee in the past about problems with his leg as well as his heart and other illness, but he never complained about not being able to work. Although she could not recall specific days, she had talked to him about his knee, and she told him about her knee problems and scheduled knee surgery. When asked if appellee was a good employee, she replied, "Very good to me. Good heart. Hard worker."
The medical records indicate that appellee began seeing Dr. Charles Clark for his right knee in 2006. Dr. Clark performed surgery for patellofemoral syndrome on the right knee in January 2006 and on the left knee in February 2006. Appellee saw Dr. John Lytle for bilateral knee pain in November 2008. There was no history of trauma, and the pain was worse in the right knee. Results of the physical exam were consistent with "early degenerative meniscus involvement." Dr. Lytle recommended an MRI of the right knee and if the results confirmed meniscus involvement, he would recommend arthroscopic intervention. If the results showed simple degenerative changes, he would recommend conservative management.
On June 18, 2015, appellee saw his family physician, Dr. Mary Howard, for right-knee pain lasting two days attributed to climbing up and down stairs at work. Dr. Howard noted "obvious edema" of the right knee as compared to the left, and limping. He was referred to orthopedic surgeon Dr. Kirk Reynolds. Appellee saw Dr. Reynolds on June 24, 2015 and reported a "contusion to the anterior aspect of the right knee about one month ago." It was noted that his pain started one week prior when he noticed swelling and that the pain worsened when bending or going up and down stairs. Dr. Reynolds recommended obtaining a new MRI of the right knee. Appellee saw Dr. Howard on June 26 and July 10 for follow-up of his right-knee pain. The July 10 notes indicated appellee could not have an MRI due to his pacemaker, and a CT scan was scheduled for July 14. He returned to Dr. Reynolds on July 20. Based on the CT scan of the right knee, Dr. Reynolds recommended a topical anti-inflammatory cream and physical therapy. Appellee saw Dr. Reynolds again on July 31 for follow-up of the right knee and reported left-ankle pain. He was seen on August 4 for left-foot pain and on October 10 for bilateral ankle pain and foot swelling with the right side being more severe. Appellee saw Dr. Howard on November 13 for bilateral foot pain and possible gout.
On November 23, appellee saw Dr. Reynolds and reported an injury that occurred on Friday. Dr. Reynolds's notes indicate,
[A] twisting injury to his left knee when he was going up and down some stairs. He felt a large pop in the medial aspect of the left knee. He had immediate onset of pain and developed a rather large effusion. He has had difficulty with range of motion and weightbearing since that time.
Dr. Reynolds's assessment was "[l]eft knee pain and effusion after a twisting injury with a pop. This likely represents a medial meniscus tear. He could also have gouty arthropathy." Dr. Reynolds recommended draining the left knee and a corticosteroid injection because he did not think a CT scan would be helpful and appellee was unable to have an MRI. The draining obtained 125 ml of synovial fluid.
Appellee was seen again on December 4 and reported that his symptoms had initially improved, but they returned after one week. He had more "mechanical symptoms of catching and locking." Examination of the left knee revealed a trace effusion with tenderness to palpitation along the medial joint line with positive medial McMurray sign. Dr. Reynolds's assessment was that the persistent knee pain and mechanical symptoms were consistent with a medial meniscus tear. Due to the inability to perform an MRI, Dr. Reynolds recommended a diagnostic arthroscopy of the knee to evaluate the medial meniscus. Surgery was performed on December 8, which revealed a medial meniscus tearand extensive synovitis. Appellee returned for postoperative follow-up with no complaints and was ultimately released to work after his appointment on January 18, 2016.
After the October 2016 hearing, the ALJ found appellee had proved by a preponderance of the evidence that he had sustained a compensable left-knee injury, that he was entitled to payment of medical expenses, and that he was entitled to TTD benefits from December 4, 2015, to January 18, 2016, during which time appellee remained in his healing period unable to work. Appellants appealed the ALJ's decision to the full Commission, who affirmed and adopted the decision of the ALJ.
For their sole argument on appeal, appellants contend that substantial evidence does not support the Commission's decision that appellee suffered a compensable injury and is therefore not entitled to medical and TTD benefits. In reviewing decisions of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. La-Z-Boy Mfg., Inc. v. Bruner , 2016 Ark. App. 117, at 5, 484 S.W.3d 700, 703. Substantial evidence exists if reasonable minds could reach the Commission's conclusion. Get Rid of It Ark. v. Graham , 2016 Ark. App. 88, at 10, 2016 WL 537389. We will not reverse the Commission's decision unless fair-minded persons with the same facts before them could not have reached the Commission's conclusions. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding. Id. Furthermore, we are bound by the Commission's determinations on issues of credibility. Pina v. Wal-Mart Stores, Inc. , 91 Ark. App. 77, 83, 208 S.W.3d 236, 239 (2005).
To prove the occurrence of a specific-incident compensable injury, the claimant must establish by a preponderance of the evidence (1) that an injury occurred arising out of and in the scope of employment; (2) that the injury caused internal or external harm to the body that required medical services or resulted in disability or death; (3) that the injury is established by medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) ; and (4) that the injury was caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i)-(ii) (Repl. 2012).
First, appellants argue that appellee failed to establish by a preponderance of the evidence that the injury was caused by a specific incident because appellee failed to report the injury on Saturday, November 21, when it allegedly occurred or when he worked on November 22; instead he waited until he returned for his next shift several days later and after he had gone to the doctor. The testimony regarding appellee's report of his injury, as set out above, was conflicting. Appellee testified he was escorting a prisoner down the stairs with his supervisor when he felt his knee pop, and he reported it to him. His supervisor testified that he did not recall the incident but acknowledged that it was a task he would have done with appellee. Appellee did not mention it again because they were shorthanded and he was trying to finish his shift. Although appellee knew an incident report needed to be filled out, he explained that he did not because they were busy. He worked the entire shift but switched with other officers in the control booth three times to get off his knee. When he went to work the next day, he could walk, but his knee was swollen and sore.
He was assigned to the control booth on Sunday and reported to Lieutenant Kelly. He testified he told her he was glad to be in the control room because his knee was swollen from working on Saturday. Lieutenant Kelly recalled talking to appellee about the potluck, but she stated that he did not report the injury until November 25. Dr. Reynolds's notes from appellee's November 23 visit indicate that appellee had an injury to his left knee when he was going up and down stairs, and felt a large pop in his left knee. Appellants question appellee's failure to report the injury after going to the doctor on November 23, but appellee explained that there was no point in reporting it until he returned for his shift on November 25 because he knew there was no light duty. Appellants also point to the fact that appellee claimed he did not know the severity of his injury at the time it occurred and that he did not immediately seek medical treatment as indicating that he did not sustain a compensable injury.
In Pafford Medical Billing Services, Inc., Firstcomp Insurance Co. v. Smith , 2011 Ark. App. 180, 381 S.W.3d 921, the employer appealed the Commission's decision finding a compensable specific-incident injury where the employee did not report the injury that day or seek immediate medical treatment because she did not initially think it was significant, but rather thought it was a muscle strain. As in our case, the evidence about the incident came from the claimant, whom the ALJ and Commission found to be credible. The ALJ and the Commission in that case noted that the medical evidence corroborated the claimant's testimony as to the occurrence and cause of injury.
Appellants contend that appellee's testimony regarding his injury is self-serving and must be questioned, setting forth reasons that reasonable minds could not come to the same conclusion with respect to appellee's credibility. When considering all the evidence, the ALJ and the Commission found appellee to be a credible witness. It is well settled that we are bound by the Commission's determinations on issues of credibility. Pina , 91 Ark. App. at 83, 208 S.W.3d at 239. Furthermore, the ALJ noted that it was not surprising that Sergeant Nunnery did not remember appellee's mentioning his knee popping because he testified that he would not have filled out an incident report for this type of complaint. Appellee's credibility was exclusively for the ALJ and the Commission to decide, and there is no merit to appellants' argument that appellee failed to meet his burden of proof on this point.
Appellants also contend that that appellee did not establish a causal connection between the "pop" he described as insignificant and the surgery he had. Appellants claim that the treatment for his left knee resembles his treatment for his right knee, which he did not claim as having resulted from a specific-incident injury at work. It is further argued that the medical evidence establishes a longstanding problem with both knees, as well as various other medical problems for which appellee received treatment.
Dr. Reynolds's November 23 notes indicate that appellee had a twisting injury to the left knee from going up and down stairs and that he felt a pop in the medial aspect of his knee. The assessment was "[l]eft knee pain and effusion after a twisting injury with a pop. This likely represents medial meniscus tear. He could also have gouty arthropathy." Dr. Reynolds observed swelling and drained fluid from the left knee. When appellee returned to Dr. Reynolds on December 4, Dr. Reynolds noted that appellee's persistent knee pain and mechanical symptoms were consistent with a medial meniscus tear. Due to the inability to perform an MRI, Dr. Reynolds performed exploratory surgery on December 8, which revealed a very small meniscus tear with extensive synovitis.
The ALJ's opinion acknowledges appellee's longstanding knee problems. However, the ALJ stated appellee felt his left knee pop and developed edema and a limp. It was noted that fluid had to be aspirated from his knee. The ALJ found these to be objective medical findings to clearly establish a new injury. The ALJ elaborated that the employer "takes the employee as he finds him" and employment circumstances that aggravate preexisting conditions are compensable. St. Vincent Infirmary Med. Ctr. v. Brown , 53 Ark. App. 30, 33, 917 S.W.2d 550, 552 (1996) (citing Pub. Emp. Claims Div. v. Tiner , 37 Ark. App. 23, 822 S.W.2d 400 (1992) ). In addition, the surgery revealed a small medial meniscus tear.
Viewing the evidence in the light most favorable to the Commission's findings, we hold that substantial evidence supports its decision that appellee had proved a compensable specific injury to his left knee and that he was entitled to medical expenses and temporary total-disability benefits.
Affirmed.
Harrison and Glover, JJ., agree.
The results of the recommended MRI are not in the record or the addendum. | [
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RHONDA K. WOOD, Associate Justice
Appellant Johnny Ratliff appeals the circuit court's denial of his pro se petition for writ of habeas corpus. Ratliff contends that the circuit court abused its discretion in failing to find that he stated sufficient grounds for the writ when he alleged (1) that there was insufficient evidence to support the enhancements to the sentences for prior convictions noted on the judgment and (2) that he was not competent when the crimes were committed or to stand trial. We affirm the denial of Ratliff's habeas petition.
On appeal, this court affirmed the judgment at issue in Ratliff's habeas petition. Ratliff v. State , 359 Ark. 479, 199 S.W.3d 79 (2004). Ratliff filed his petition asserting the two claims that he also raises on appeal-insufficient evidence to support the sentence enhancements noted on the judgment and his incompetence-among others. The circuit court found, citing Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503, that Ratliff's petition failed to set forth a basis for the writ. Unless a petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Id. A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Garrison v. Kelley , 2018 Ark. 8, 534 S.W.3d 136. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
Ratliff alleges that the circuit court's application of Philyaw was error because any such limitations would unconstitutionally suspend the right to the writ in violation of article 2, section 11 of the Constitution of the State of Arkansas of 1874. He cites Renshaw v. Norris , 337 Ark. 494, 989 S.W.2d 515 (1999). Ratliff is mistaken. Renshaw explained that the General Assembly's role was to set out the procedural mechanism for obtaining habeas relief. Id. at 497, 989 S.W.2d at 517.
Ratliff additionally contends that the trial court abused its discretion in finding that the grounds in his petition did not support the writ. Most of the grounds for relief that Ratliff argued below, he does not raise on appeal. These are considered abandoned. The two grounds that he alleges on appeal-insufficient evidence to support the enhancements for his prior convictions that were noted on the judgment and that he was incorrectly found competent as a result of defective evidence that had been admitted-fall outside of the defining limitations of the writ. Assertions of trial error and due-process claims do not implicate the facial validity of the judgment or the jurisdiction of the trial court. Williams v. Kelley , 2017 Ark. 200, 521 S.W.3d 104. An issue with the admission of evidence, which includes the issue Ratliff raised concerning the evidence to support the enhancements and the evidence supporting the trial court's decision on his competency, is a challenge that is not cognizable in a habeas proceeding. See Philyaw , 2015 Ark. 465, 477 S.W.3d 503.
The State, not Ratliff, points out that there is a clerical error in the judgment and commitment order. Ratliff was charged and convicted of a Class-B felony, however, the order reflects a Class-Y felony. The sentence of 30 years is within the statutory range for both a Class-B felony and a Class-Y felony under the applicable habitual-offender statute thus the sentence remains valid on its face. See Ark. Code Ann. § 5-4-501(b)(2) (Supp. 2001). As the State explains, clerical errors do not prevent the enforcement of the judgment and the sentencing court, not the current lower court, may enter an order nunc pro tunc at any time to correct clerical errors in the judgment or order. Vance v. State , 2011 Ark. 243, 383 S.W.3d 325. That is outside the purview of the present matter as the defendant did not raise it in his habeas petition and it factually does not impact either of the grounds for habeas.
Affirmed.
Ratliff appears to reference on appeal that he filed a second petition, but only one petition is contained in the record and only one petition is referenced in the order appealed. | [
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BART F. VIRDEN, Judge
This is an appeal from the September 27, 2017 decision of the Arkansas Workers' Compensation Commission ("Commission") affirming the determination of the administrative law judge ("ALJ") that Michael Lawson Bess sustained a compensable injury. The employer and insurance carrier appellants contend that no substantial evidence exists to support the Commission's decision. We affirm.
I. Facts
When Bess sustained his injury on December 25, 2016, he was sixty-six years old and had been employed with the Kroger pharmacy for about three years. Bess worked as a staff pharmacist, and on the day of the injury his employer required him to go to work to check on the pharmacy after the security alarm sounded. Bess left his home in Conway and drove to the pharmacy, which is located in Russellville. The pharmacy is a free-standing building located in the Kroger grocery store parking lot. Bess parked in the space directly in front of the pharmacy, sat in his car for a few minutes, and he observed that there was no sign of forced entry and that he could not hear an alarm sounding. Bess exited the vehicle and fell while climbing the curb, breaking his left leg. Bess was taken by ambulance to the hospital, and he was hospitalized for twenty-one days. An orthopedic surgeon placed four screws and a rod in his leg, and after his hospitalization Bess completed an eleven-day inpatient rehabilitation program. Following the incident, appellants denied Bess's request for workers'-compensation benefits because they did not consider Bess to have been performing employment services when he was injured. Bess initiated a claim for benefits with the Commission.
On August 15, 2017, a hearing was held before the ALJ to determine the compensability of Bess's claim arising out of the December 25, 2016 job injury. At the hearing, Bess testified in pertinent part that part of his job as a staff pharmacist is ensuring that the premises are secure and "making sure there is no pilfering or stealing[.]" Bess testified that on Christmas day in 2016, he received a voicemail message from the Kroger Central Alarm Control ("KCAC") informing him that the alarm had sounded at the pharmacy. Bess advised KCAC to send the police and to ask the police if any doors or windows had been broken. KCAC explained that the police would not divulge that information, which Bess thought was unusual. A little later, Bess received a call from Scott Carpenter, an asset-protection manager for Kroger, who told him to go check on the store, and Bess drove to Russellville to do so. Bess testified that "I felt that I needed to comply with Mr. Carpenter's request because that is my job. I am supposed to take care of the pharmacy and assumed whenever security or loss prevention called that we are required to take care of that. I thought he had apparent authority to tell me what to do." Bess testified that he had been required to check on the pharmacy when an alarm sounded once before the incident on Christmas day. On the day Bess injured his left leg, he arrived in the parking lot and did not hear the alarm sounding, nor did he observe any signs of forced entry. He sat in his car finishing a cigarette and then got out of his car and approached the front door to unlock it. Bess stated that he stepped up on the six-inch curb with his right foot and then fell and broke his left leg. The security video of Bess's fall was admitted and showed Bess stepping up onto the curb with his right foot and immediately falling down. Bess admitted that in the past he had issues with his right knee, he had used a cane, and that sometimes his right knee felt weak and as though it was going to "go out on me." Bess stated that he had not had any treatment for his right knee, and it had been ten years since he had talked to a doctor about his knee. Bess also stated that his knee did not give out on him that day, that he had not had any trouble before the fall, and that three entrances to his home involved climbing and descending stairs.
Scott Carpenter described the protocol regarding the sounding of the security alarm. Carpenter explained that when the alarm sounds, someone from the KCAC calls the employees on the call list
to make contact with someone to go to that location if they feel it is necessary for someone to go. The judgment of whether someone should go is up to the call center people. They decide if there's someone that needs to be called to be notified or if they feel that someone may or may not need to go to the store.
Carpenter testified that on December 25, 2016, KCAC contacted him and told him that someone needed to go check on the store and that police had arrived at the scene. Carpenter asked if there had been a break-in, but KCAC was unable to give him that information. Carpenter testified that though he was not Bess's supervisor and had no authority over him, he asked Bess to check on the store, and Bess agreed to go.
Steve Depner, the Kroger pharmacy manager since 2008, described Bess as a "co-manager" or "staff pharmacist." Depner explained that the Russellville location is a "unique situation" because the pharmacy is free-standing and not contained within the grocery store.
In the September 27, 2017 opinion, the ALJ found that Bess's injury was a nonidiopathic compensable injury arising out of the course and scope of his employment. Specifically, the ALJ found that regarding whether Bess was performing employment services at the time of the injury, "it is clear that on a normal day, the claimant would not be actually at work until he got in the store, the situation was different on Christmas Day. The store was closed, and a burglar alarm went off." The ALJ relied on Carpenter's testimony that KCAC "decides if ... they feel if someone may need to go, that they call the shots, and that they needed someone to go." The ALJ found that, based on KCAC's decision, Carpenter and Bess agreed that Bess would go to the store. The ALJ determined that Bess had driven to the store to check the alarm on a previous occasion, and that he felt his job description included preventing and reporting robbery. In light of these facts, the ALJ found that Bess was performing employment services when he traveled from Conway to Russellville to check on the pharmacy. The ALJ also found it "important that the claimant had previously made the same trip because he felt that it was part of his job and he was never instructed to not check on the store if he got a call in regard to the alarm."
The ALJ also determined that Bess's injury was nonidiopathic, and therefore compensable. Specifically, the ALJ found that though Bess had previously had issues with his right knee, the claimant credibly testified that he did not suffer problems going up and down stairs on Christmas Day. The ALJ noted that when Bess broke his left leg and was admitted to St. Mary's Hospital in Russellville, his medical records contained no mention of any problems, complaints, or treatment of Bess's right leg or knee.
Appellants appealed the ALJ's determination, and the full Commission affirmed and adopted the ALJ's decision. This timely appeal followed.
In reviewing a decision from the Commission, our court reviews the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirms if the decision is supported by substantial evidence. Nichols v. Micro Plastics, Inc. , 2015 Ark. App. 134, 2015 WL 826691. Substantial evidence exists if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. Id. The issue is not whether the appellate court might have reached a different result from that of the Commission but whether reasonable minds could reach the result found by the Commission. Texarkana Sch. Dist. v. Conner , 373 Ark. 372, 284 S.W.3d 57 (2008). It is the Commission's duty, not ours, to make credibility determinations, to weigh the evidence, and to resolve conflicts in the medical testimony. Martin Charcoal, Inc. v. Britt , 102 Ark. App. 252, 284 S.W.3d 91 (2008).
We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions of the Commission. Cedar Chem. Co. v. Knight , 99 Ark. App. 162, 258 S.W.3d 394 (2007), aff'd , 372 Ark. 233, 273 S.W.3d 473 (2008). Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission, and when there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. Neal v. Sparks Reg'l Med. Ctr. , 104 Ark. App. 97, 289 S.W.3d 163 (2008). The Commission is not required to believe the testimony of the claimant or any other witnesses but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id. The Commission is the ultimate arbiter of weight and credibility. Towler v. Tyson Poultry, Inc. , 2012 Ark. App. 546, at 2, 423 S.W.3d 664, 666.
The sole issue on appeal is whether substantial evidence supports the Commission's finding that appellee proved that he sustained a compensable injury. Appellants argue that the Commission erred in finding that Bess was performing employment services when he sustained the injury to his left leg and that the injury was nonidiopathic in nature and therefore compensable. We disagree.
Arkansas Code Annotated section 11-9-102(4)(A)(I) defines compensable injury as
[a]n accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence.
Our court has held that an employee is performing employment services when he or she is doing something that is generally required by his or her employer. Hill v. Treadaway , 2014 Ark. App. 185, 433 S.W.3d 285. We use the same test to determine whether an employee was performing employment services as we do when determining whether an employee was acting within the course of employment. Id. The test for determining whether an employee was injured while performing employment services is the same as the test for determining whether an injury occurred out of and in the course of employment: whether the injury occurred within the time and space boundaries of the employment when the employee was carrying out the employer's purpose or advancing the employer's interest directly or indirectly. Herrera-Larios v. El Chico 71 , 2017 Ark. App. 650, at 6, 535 S.W.3d 305, 310. The critical inquiry is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Id. Moreover, the issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Centers for Youth & Families v. Wood , 2015 Ark. App. 380, at 4, 466 S.W.3d 422, 425.
The ALJ's decision-adopted by the full Commission-that Bess was performing employment services when he was injured relies on substantial evidence. The ALJ found that Bess's "trip to check on the store [was] an inherent and necessary incidental to a required employment activity in order to satisfy his job description." The ALJ noted that Bess had previously driven to the store to check the alarm because he believed it was his job to do so. Also, the ALJ heard testimony that Bess and the pharmacy manager agreed that KCAC "called the shots" and that he must go to the pharmacy to check the alarm. Furthermore, there was testimony that the police refused to disclose whether the building had been physically breached, which related directly to Bess's job description that he was responsible for ensuring the premises are secure and for preventing loss. There is no error in the Commission's finding that Bess was performing employment services as he approached the pharmacy to check on the building and the situation involving the alarm, and there is sufficient evidence to support the finding that Bess was performing employment services when he was injured.
We now turn to appellants' contention that the Commission's decision that Bess's injury is non-idiopathic is erroneous. An idiopathic injury is one whose cause is personal in nature, or peculiar to the individual. Cedar Chem. Co. , 99 Ark. App. at 165, 258 S.W.3d at 396. Injuries sustained due to an unexplained cause are different from injuries where the cause is idiopathic. Id. When a claimant suffers an unexplained injury at work, it is generally compensable. Id. Because an idiopathic injury is not related to employment, it is generally not compensable unless conditions related to the employment contribute to the risk of injury or aggravate the injury. Id.
Appellants argue that the Commission's finding that Bess's injury resulted from a specific incident was arbitrary, and there was clear evidence in the record to the contrary. We disagree. Appellants' arguments that (1) Bess did not present a convincing story regarding the cause of the fall, (2) that a weakened right knee from a high school basketball injury must have caused the fall, and (3) that the video of Bess falling is clear proof that a weakened right knee caused the fall are essentially a request for this court to determine the credibility of the witnesses and to reweigh the evidence. As we stated above, it is the Commission's duty to make credibility determinations and to weigh the evidence See Martin Charcoal, Inc., supra .
The Commission found credible Bess's testimony that he had no problem climbing stairs before this accident. Furthermore, the Commission opined that Bess's left-leg injury was nonidiopathic primarily because there was no evidence in Bess's medical records of this type of injury, any related symptoms, or related treatment prior to his accident at work. Viewing the evidence in the light most favorable to the Commission, we hold that substantial evidence supports the Commission's decision that Bess's injury arose out of employment and that it was non-idiopathic in nature. We hold that reasonable minds could reach the result found by the Commission.
Affirmed.
Gruber, C.J., and Whiteaker, J., agree. | [
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LARRY D. VAUGHT, Judge
Jessica Vangilder appeals the Faulkner County Circuit Court's order revoking her probation. We affirm in part and reverse in part.
On April 12, 2017, Vangilder pled guilty to violating Arkansas Code Annotated section 5-64-419(b)(1)(A), possession of a controlled substance; section 5-64-443(a)(2), possession of drug paraphernalia; and section 5-35-103(b)(4)(A), theft of property. She was sentenced to probation. On May 10, 2017, the State filed a revocation petition alleging that Vangilder violated the terms and conditions of her probation by failing to report, failing to pay fines and fees, and failing to abstain from illegal substances.
The Faulkner County Circuit Court held a bench trial on June 23, 2017. The State's sole witness was probation officer Stephanie Turner, who testified that Vangilder failed to report to the probation office on May 4, and May 9, 2017; owed $490 in unpaid supervision fees and $1,345 in unpaid fines and costs; had not completed her community service obligations; and had failed an alcohol screen on April 27, 2017. The defense called no witnesses.
At the conclusion of the bench trial, the court revoked Vangilder's probation, stating,
CR-17-41, she had two counts. The Theft of Property was disposed of, I think, in the first case. She did two months in the County Jail. On the Class D felonies to which she pled guilty to probation in that case, I'm going to sentence her to an additional 36 months in the Arkansas Department of Corrections, and those two sentences will run consecutively.
The court's statement references the fact that Vangilder was originally sentenced to two months in the county jail on the theft-of-property charge with no probation. The original order also reflected a jail-time credit of eighty-six days, meaning that Vangilder had fully served her sentence on that charge at the time of the original sentencing order.
Despite the court's verbal pronouncement, its subsequently filed order imposed two thirty-six-month sentences on the two underlying felonies and twelve months on the theft-of-property misdemeanor. Vangilder filed a timely appeal.
Pursuant to Arkansas Code Annotated section 16-93-308(d) (Repl. 2017), a circuit court may revoke a defendant's probation at any time prior to the expiration of the period of probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of the probation. Springs v. State , 2017 Ark. App. 364, at 3, 525 S.W.3d 490, 492. "Thus, to sustain a revocation, the State need show only that the defendant committed one violation." Id. , 525 S.W.3d at 492. The State's burden of proof in a revocation proceeding is less than is required to convict in a criminal trial, and evidence that is insufficient for a conviction thus may be sufficient for a revocation. Id. , 525 S.W.3d at 492. When the sufficiency of the evidence is challenged on appeal from an order of revocation, the circuit court's decision will not be reversed unless its findings are clearly against the preponderance of the evidence. McClain v. State , 2016 Ark. App. 205, at 3, 489 S.W.3d 179, 181. Appellate courts review the sufficiency of the evidence supporting revocation by viewing the evidence in the light most favorable to the State. Sisk v. State , 81 Ark. App. 276, 280, 101 S.W.3d 248, 251 (2003). This court defers to the circuit court's superior position in evaluating the credibility and weight to be given testimony. Peals v. State , 2015 Ark. App. 1, at 4, 453 S.W.3d 151, 154. Finally, only one violation of probation is required to sustain a revocation. Springs v. State , 2017 Ark. App. 364, at 3, 525 S.W.3d 490, 492.
Vangilder argues that the State failed to introduce the terms and conditions of her probation and failed to prove that she was aware of them. This issue is unpreserved for our review because Vangilder never made a motion to dismiss or otherwise raised this argument at trial. While it is true that, when appealing a revocation, an appellant may challenge the sufficiency of evidence for the first time on appeal without having moved for a directed verdict, Cotta v. State , 2013 Ark. App. 117, at 3, 2013 WL 625735, we will not address a procedural challenge unless it was adequately preserved below. Costes v. State , 103 Ark. App. 171, 175, 287 S.W.3d 639, 643 (2008). "[A]n argument that the State failed to introduce a copy of the terms and conditions of a [probation] is a procedural objection that must be raised before the circuit court." Myers v. State , 2014 Ark. App 720, at 3, 451 S.W.3d 588, 590. An appellant cannot raise this procedural argument for the first time on appeal when, at the revocation hearing, he or she did not object to the State's failure to introduce the terms and conditions of his or her probation. Cotta , 2013 Ark. App. 117, at 4. Probation conditions are not an element to be proved at the revocation hearing. Whitener v. State , 96 Ark. App. 354, 356, 241 S.W.3d 779, 781 (2006). We previously addressed this specific issue in Cotta , holding that "Cotta never objected to the State's failure to introduce the terms and conditions of his suspended sentence before the trial court. Under Whitener and Costes , Cotta's argument is not preserved for appeal." Cotta , 2013 Ark. App. 117, at 4. For the same reason, we cannot address Vangilder's argument that the State failed to introduce the terms and conditions of her probation into evidence.
Alternatively, we note that Turner's testimony was sufficient to establish the terms and conditions of Vangilder's probation. Turner testified as to Vangilder's previous revocations, noted that an administrative officer had gone over the terms and conditions with Vangilder, and stated that signed copies of those documents were in her file.
Vangilder next challenges the sufficiency of the evidence as to each of the court's findings that she violated the terms and conditions of her probation: she failed to report, tested positive for alcohol, failed to complete community service, and failed to pay her court-ordered obligations. The State need only prove one violation of probation to sustain a revocation. Springs , 2017 Ark. App. 364, at 3, 525 S.W.3d at 492. In this case, Turner testified that Vangilder was instructed to report on May 4, 2017, but failed to do so. Two officers then conducted a home visit on May 8, 2017, and left instructions for Vangilder to report the following day. She again failed to report to the probation office. Turner testified that, as of the date of the hearing, she had received no contact from Vangilder since April 27, 2017. Vangilder's only argument on appeal related to her failure to report is that the State failed to prove that she was aware of her obligation to report on the specified dates. We disagree. Turner's testimony established that Vangilder had been informed of the terms and conditions of her probation, including the reporting requirement, that she had failed to report at least twice, and that despite phone calls and a home visit, Vangilder made no contact with the probation office. We affirm the court's finding that Vangilder violated the terms and conditions of her probation by failing to report, and we therefore need not address any other grounds for revocation. Springs , 2017 Ark. App. 364, at 3, 525 S.W.3d at 492.
Vangilder next argues that her sentence is illegal. She makes two points: (1) that she was sentenced on the theft-of-property misdemeanor for which she had already fully served her time, and (2) the court's pronouncement from the bench indicated that she would receive one thirty-six-month sentence for the two felonies, but the written sentencing order sentenced her to thirty-six months on each felony. Her second point has no merit; when there is a discrepancy between the judgment and commitment order and the pronouncement of sentence, it is the entered judgment and commitment order that controls. Vance v. State , 2011 Ark. 243, at 35, 383 S.W.3d 325, 347.
Her first point, however, warrants reversal of the revocation of her probation as to her misdemeanor theft-of-property charge. The original sentencing order sentenced Vangilder to two months in the county jail for theft of property and reflected a jail-time credit of eighty-six days, meaning that Vangilder had already served her sentence as to that charge. At the end of the revocation hearing, the court acknowledged as much, stating from the bench that the theft-of-property charge had been "disposed of" in the original case because "she did two months." Yet the court's subsequent written sentencing order imposed a sentence of twelve months' imprisonment for the theft-of-property misdemeanor. Vangilder cites Massey v. State , 278 Ark. 625, 648 S.W.2d 52 (1983) ; Davis v. State , 169 Ark. 932, 277 S.W. 5 (1925) ; and Nelson v. State , 284 Ark. 156, 680 S.W.2d 91 (1984), for the proposition that a circuit court lacks jurisdiction to modify a sentence that has already been executed. We agree and reverse the court's revocation order as to the theft-of-property charge. Because Vangilder was not serving probation on the theft misdemeanor, the court had no authority to enter a revocation order as to that charge.
Affirmed in part; reversed in part.
Abramson and Glover, JJ., agree.
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COURTNEY HUDSON GOODSON, Associate Justice
The State of Arkansas appeals from the Craighead County Circuit Court's order granting appellee Karen Siegel's motion to dismiss the charges against her based on a speedy-trial violation. For reversal, the State argues that the circuit court erred by rejecting the State's argument that a particular period of time should have been excluded from the speedy-trial calculations. Siegel has filed a motion to dismiss the appeal, asserting that it is not a proper State appeal under Ark. R. App. P.-3(d) (2017). We grant Siegel's motion and dismiss the appeal.
Siegel was convicted of thirty-one counts of misdemeanor animal cruelty in district court, and she appealed her convictions to the circuit court on November 19, 2015. The trial was initially set for March 29, 2016, but on Siegel's motion was continued to August 30, 2016. On August 16, 2016, Siegel filed motions to suppress evidence and to declare the animal-cruelty statutes unconstitutional. A hearing was held on these motions on November 21, 2016, and the circuit court left the record open for additional exhibits, which were filed by Siegel on December 5, 2016. On May 10, 2017, the circuit court entered orders denying Siegel's motion to suppress and her motion to declare the statutes unconstitutional.
Siegel filed a motion to dismiss the charges against her on September 22, 2017, based on speedy-trial grounds. Siegel claimed that after excluding the periods of time attributable to the defense, more than twelve months had elapsed since the speedy-trial time began to run on November 15, 2015, and she was entitled to have the charges dismissed with an absolute bar to prosecution pursuant to Arkansas Rule of Criminal Procedure 28.1(c) (2017). The State filed a response to the motion wherein it contested one of the time periods excluded by Siegel.
The circuit court held a hearing on the motion to dismiss on October 3, 2017. The primary dispute between the parties centered on the time period between the November 2016 hearing on Siegel's motions and the order denying those motions in May 2017. The circuit court found that the speedy-trial time began to run on January 4, 2017, thirty days after the supplemental material in support of Siegel's motions had been submitted and the motions were taken under advisement. However, the State argued that a January 6, 2017 email exchange between the State and defense counsel, stating that counsel was "in favor of moving the trial date" showed that Siegel had agreed to postpone the trial pending the circuit court's ruling on her motions. Thus, the State contended that the period between January 5, 2017, and May 10, 2017, was excluded from the speedy-trial calculation. The circuit court agreed with Siegel that this time period was not excluded, stating that the court had not been not privy to these discussions between counsel and that there was no indication from the record that Siegel had requested a continuance during this time frame. Thus, the court found that Siegel's right to a speedy trial had been violated and dismissed the charges against her in an order entered on October 4, 2017. The State timely appealed from this order.
As a threshold matter, we must decide if we have jurisdiction to hear the State's appeal in this case. Unlike that of a criminal defendant, the State's right to appeal is limited by the provisions of Rule 3 of the Arkansas Rules of Appellate Procedure-Criminal. State v. Ledwell , 2017 Ark. 252, 526 S.W.3d 1. Although Rule 3(b) allows the State to appeal following a misdemeanor or felony prosecution, we will not accept such an appeal unless the correct and uniform administration of the criminal law requires review by this court. Ark. R. App. P.-Crim. 3(d). We review only State appeals that are narrow in scope and that involve the interpretation, not the application, of a criminal rule or statutory provision. Ledwell , supra ; State v. Jenkins , 2011 Ark. 2, 2011 WL 143571. In addition, we do not allow an appeal by the State that involves a mixed question of law and fact. State v. Brashers , 2015 Ark. 236, 463 S.W.3d 710 ; Jenkins, supra. When the resolution of a State's attempted appeal turns on the facts of the case and does not require interpretation of our criminal rules with widespread ramifications, the appeal is not proper under Rule 3. Statev. Johnson , 374 Ark. 100, 286 S.W.3d 129 (2008). State appeals that merely demonstrate that the circuit court erred are not permitted. Id.
The State contends that the issue presented in this appeal involves the correct and uniform administration of the law. The State specifically argues that the circuit court erred as a matter of law by concluding that an email agreement between Siegel and the State that the trial should not be set until the court ruled on Siegel's pending motions did not toll the speedy-trial time. The State cites Ferguson v. State , 343 Ark. 159, 33 S.W.3d 115 (2000), in which we held that a statement by defense counsel that he intended to file a writ of prohibition and that he assumed the time would be charged to the defendant amounted to a waiver of the defendant's right to a speedy trial.
In her motion to dismiss the State's appeal, Siegel argues that the issue raised by the State involves the application, not the interpretation, of our speedy-trial rules. She contends that the circuit court made specific factual findings at the hearing regarding the tolling and running of speedy-trial times and that this appeal does not concern the interpretation of a specific rule, statute, or other law.
We agree. The State's appeal in this case is a challenge to the circuit court's findings of fact regarding which periods of time were attributable to Siegel and therefore excluded from the speedy-trial calculation. Thus, it does not present an issue of interpretation of a criminal rule that would have widespread ramifications. See, e.g. , State v. S.L. , 2012 Ark. 73, 2012 WL 581690 (dismissing appeal where it involved the application of speedy-trial rules to the unique facts in that case); State v. Johnson , supra (dismissing State appeal from an order granting a motion to dismiss for lack of speedy trial because the issue raised was a factual determination and did involve the correct and uniform administration of justice); State v. Tipton , 300 Ark. 211, 779 S.W.2d 138 (1989)
(same). Accordingly, the State's appeal is not authorized under Rule 3, and we grant Siegel's motion to dismiss the appeal.
Appeal dismissed. | [
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ROBIN F. WYNNE, Associate Justice
Angela Zimmerman has filed a petition for writ of certiorari in which she contends that her right to speedy trial has been violated. This court voted to take the petition as a case and ordered the parties to submit briefs. We grant the petition.
Zimmerman was arrested on charges of theft of property over $25,000 and second-degree forgery on September 10, 2012. An information charging her with those offenses was filed on December 6, 2012. Zimmerman was arraigned on December 11, 2012. During the arraignment, she indicated that she wished to hire counsel. She was ordered to appear on February 19, 2013. She appeared on that date with counsel and requested a continuance, which was granted. The circuit court subsequently granted four additional requests for continuance by Zimmerman. On October 21, 2013, the State made an oral motion to nolle prosequi the charges against Zimmerman. It appears from the record that the motion was based on Zimmerman's agreement to pay restitution to the victim. The motion was orally granted by the circuit court. The State subsequently filed a written motion for nolle prosequi. A written order granting the motion was filed on March 17, 2014.
The State filed a new criminal information on August 7, 2014, again charging Zimmerman with theft of property over $25,000 and second-degree forgery. Hearings were set for September 16, 2014, January 20, 2015, and April 21, 2015. On each of these dates, Zimmerman failed to appear and her whereabouts were unknown. On April 29, 2015, Zimmerman was arrested on a warrant issued when the charges against her were refiled. She appeared with counsel on May 12, 2015, and requested and was granted a continuance. She subsequently requested and was granted a series of continuances that resulted in the case being continued until April 26, 2017.
On March 24, 2017, Zimmerman filed a motion to dismiss for failure to provide her with a speedy trial. Following a hearing on the motion, the circuit court entered an order denying the motion on May 25, 2017. On July 8, 2017, Zimmerman filed a motion for reconsideration of the order denying her motion to dismiss, which was denied by the circuit court. Zimmerman filed the instant petition for writ of certiorari on October 16, 2017.
This court has held that an order denying a motion to dismiss based on a speedy-trial violation may be subject to review through a petition for writ of certiorari. Ark. R. Crim. P. 28.1(d) (2017); Brown v. Gibson , 2012 Ark. 285, 423 S.W.3d 34. There are two requirements that must be satisfied for this court to grant a writ of certiorari. Pedraza v. Cir. Ct. of Drew Cty. , 2013 Ark. 116, at 8, 426 S.W.3d 441, 446. The first requirement for a writ of certiorari is that there can be no other adequate remedy but for the writ of certiorari. Id. Second, a writ of certiorari lies only when (1) it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Id. Certiorari is not to be used to look beyond the face of the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts, or to review the exercise of a court's discretionary authority. Id. This court has held that the writ of certiorari may not be used as a substitute for an appeal. Conner v. Simes , 355 Ark. 422, 429, 139 S.W.3d 476, 480 (2003).
Zimmerman has alleged a violation of her right to speedy trial. Arkansas Rule of Criminal Procedure 28.1(c) provides that
[a]ny defendant charged with an offense and held to bail, or otherwise lawfully set at liberty, including released from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
Once a defendant establishes a prima facie case of a speedy-trial violation, i.e., that his or her trial took place outside the speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant's conduct or was otherwise justified. Branning v. State , 371 Ark. 433, 267 S.W.3d 599 (2007). The trial court found that 1,656 days passed between Zimmerman's initial arrest and the filing of her motion to dismiss. The trial court also found that 1,347 of those days were excluded under Rule 28.3(c), leaving 309 days during which speedy trial was not tolled. This would leave the State with fifty-six days to bring Zimmerman to trial. In her petition, Zimmerman stipulates to 987 days of excluded time. She challenges the trial court's findings as to two periods of time: December 11, 2012, through February 19, 2013 (a period of seventy days), and October 21, 2013, through March 17, 2014 (a period of 290 days).
The 290-day period from October 21, 2013, through March 17, 2014, is the time from the date of the State's oral motion to nolle prosequi to the entry of the written order granting the motion. The trial court determined that this period was excluded pursuant to Arkansas Rule of Criminal Procedure 28.3(f), which provides that the time between a dismissal or nolle prosequi upon motion of the prosecuting attorney and the time the charge is later filed for the same offense is excluded in computing the time for trial. Zimmerman contends that this period should not be excluded because the nolle prosequi of the charges did not become effective until the written order was entered on March 17, 2014.
The State contends that Zimmerman's challenge to this period is not preserved because she agreed at the October 21, 2013 hearing that the State had time to refile the charges, thus waiving any challenge to speedy trial. While Zimmerman's counsel did agree that the applicable statute of limitations would permit the State to refile the charges (which it later did), there is no indication that Zimmerman agreed that speedy trial would be tolled from the date of the motion for nolle prosequi, nor is there anything in the record to suggest that the trial court ever indicated that speedy trial was tolled on October 21, 2013. Zimmerman's challenge to this period is preserved for appeal.
We hold that the nolle prosequi did not became effective until the written order was entered. This court has held that entry of a nolle prosequi is a final order.
State v. C.W. , 374 Ark. 116, 286 S.W.3d 118 (2008). Pursuant to Arkansas Supreme Court Administrative Order No. 2, an oral order announced from the bench does not become effective until reduced to writing and filed. Carr v. Nance , 2010 Ark. 25, 2010 WL 199626. A judgment or decree is effective only when so set forth and entered as provided in Administrative Order No. 2. Ark. R. Civ. P. 58 (2017). Administrative Order No. 2 and Rule 58 have been applied to criminal judgments. See Bradford v. State , 351 Ark. 394, 94 S.W.3d 904 (2003). Administrative Order 2(b)(2) (2017) states that an order is "entered" when the clerk marks or stamps it with the date and time and the word "filed."
Here, the circuit court orally granted the motion to nolle prosequi and indicated that the motion was granted on the record of appearance for October 21, 2013. While the record of appearance is a written document, it was never stamped or marked "filed" by the clerk. Therefore, there was no document, filed of record, dismissing the charges by nolle prosequi until the written order was filed on March 17, 2014. The State appears to contend that the excluded time begins when the motion is made. The State's argument is based on a mistaken reading of Rule 28.3. Under the plain language of Rule 28.3, speedy trial is not tolled until the charges are either dismissed or nolle prossed.
The State also cites Arkansas Code Annotated section 16-85-713 (Repl. 2005), which provides that the prosecuting attorney shall not enter a nolle prosequi or abandon an indictment without leave of the court and without it first being entered on the docket. To the extent the State is contending that entry on the docket makes a nolle prosequi effective, it is mistaken. Section 16-85-713 does not speak to when a nolle prosequi becomes effective. Further, even if it could be read to do so, statutes are given deference only to the extent that they are compatible with our rules, and conflicts which compromise these rules are resolved with our rules remaining supreme. Reed v. State , 317 Ark. 286, 878 S.W.2d 376 (1994). Our rules provide that a bench ruling must be written and filed to be effective.
Under our rules, the nolle prosequi did not become effective until March 17, 2014. The trial court erred in determining that speedy trial was tolled during the period from October 21, 2013, to March 17, 2014. Adding this period of 290 days to the 309-day period during which the trial court found that speedy trial was not tolled brings the total number of days during which speedy trial was not tolled well over the 365-day limit. Zimmerman's right to speedy trial was violated, and her petition for writ of certiorari is granted.
Because we grant Zimmerman's petition based on her challenge to the period from October 21, 2013, to March 17, 2014, it is unnecessary for us to consider her challenge to the period from December 11, 2012, to February 19, 2013.
Petition granted.
Wood, J., dissents. | [
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MIKE MURPHY, Judge
Eddie Nelson was convicted in a bench trial of residential burglary and theft by receiving for which he was sentenced as a habitual offender to an aggregate sentence of ten years' incarceration in the Arkansas Department of Correction. On appeal, Nelson argues that the evidence was insufficient to sustain his conviction for residential burglary. We affirm.
The following evidence was introduced by the State at Nelson's trial. April Goff testified that she was sitting on the front porch of her mother's house when she heard a pounding noise coming from a house down the street. The house was between fifty and one hundred yards from her mother's front porch. She explained that she looked and saw the garage door shaking and noticed there was a white SUV backed into the driveway. She thought it unusual because she had never seen a car that big outside of that house. Goff called 911 and described the scene. She then saw three men enter the house, then come out; one man put a flat-screen television in the back of the SUV. While she could not identify a face, she was certain she knew what two of the men were wearing. She described one as
a gentleman that was wearing, like, all blue, kind of like Kentucky blue, the color [of] the Kentucky Wildcat basketball game. My husband's from Kentucky. The shorts, the shirt and everything was this blue color and then there was also a ball cap. He was wearing all the same shade of blue shorts, hat and-all very similar shades of blue.
Detective Kenny Baer of the Little Rock Police Department testified that he responded to a radio call that described the burglary and provided a vague description of the suspects and the vehicle. In response, Baer and his partner canvassed the neighborhood and later observed a vehicle matching that description. The partners maintained surveillance from a couple of blocks away and while doing so, also observed three men coming back to the vehicle, putting a television inside, and then driving away from the residence. Baer also identified one of the men as wearing all blue, which corroborated what Goff had described. Baer then contacted marked patrol units that were in the area to have them initiate a traffic stop.
The officers nearby stopped the vehicle and took the driver and one of the passengers into custody. The driver was wearing all blue and was identified as Nelson. When Baer arrived at the location of the traffic stop, a flat-screen television was in plain view in the back of the SUV. Assorted tools including bolt cutters, a hammer, wire snaps, and a pry tool were also recovered from the vehicle.
Jonathan Lindsay, the owner of the house at issue, testified that the flat-screen television found in the white SUV driven by Nelson was his television. Lindsay further testified that he did not know Nelson and that Nelson did not have permission to be in his house.
After the State rested, Nelson moved for a directed verdict based on insufficient evidence. The circuit court denied the motion. Nelson did not call any witnesses and renewed his directed-verdict motion. The circuit court denied that motion as well, and he was convicted of the crime. He now timely appeals.
On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. See Martinez v. State , 2018 Ark. App. 187, at 3, 545 S.W.3d 264, 265. This court views the evidence in the light most favorable to the State and affirms if there is substantial evidence to support the verdict. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. This court does not weigh the evidence presented at trial or assess the credibility of the witnesses because those are matters for the fact-finder. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. Only evidence supporting the verdict will be considered. Id. at 4, 545 S.W.3d at 265 (citing Leaks v. State , 345 Ark. 182, 185, 45 S.W.3d 363, 365 (2001) ).
Circumstantial evidence may not provide the sole basis for a criminal conviction if it can be reconciled with the theory that someone other than the defendant committed the crime or that there was no crime committed at all. Henson v. State , 2014 Ark. App. 703, at 4, 450 S.W.3d 677, 679-80. The circumstances relied on by the State "must be so connected and cogent as to show guilt to a moral certainty and must exclude every other reasonable hypothesis than that of guilt of the accused." Id.
Nelson's sole point on appeal is that the evidence was insufficient to support his conviction for residential burglary. He specifically argues that the State failed to prove that he entered Lindsay's residence. He asserts that his proximity in time to the burglary and theft was not sufficient to prove his guilt because he was not stopped by the police until an hour after Goff had reported the crime. He also notes that Goff could not identify him as one of the men who had entered the residence. We are not persuaded.
A person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013). Nelson relies on Lindsey v. State , 68 Ark. App. 70, 3 S.W.3d 346 (1999), to support his argument. There, we held that sufficient evidence did not support appellant's theft-by-receiving conviction of a utility van when the circumstantial evidence simply demonstrated that appellant was near the location where the theft had occurred. Id. We held that utility vans are not unique, so the possibility that appellant could be present in a utility van like the stolen van that was discovered nearby hours later was not unreasonable. Id.
Here, in contrast, the evidence does more than demonstrate a remote possibility. Shortly after the burglary took place, Nelson was seen in the area where the burglary had occurred wearing clothes like those worn by one of the burglars and driving an SUV that matched the description of the SUV seen by Goff and Detective Baer. Finally, Nelson was in possession of the flat-screen television that was stolen in the course of the burglary, and he was in possession of tools that would be helpful to commit a burglary. Therefore, we hold that substantial evidence supports his conviction for residential burglary.
Affirmed.
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DAVID M. GLOVER, Judge
Zebarious Hawkins was tried by a jury and found guilty of the offense of aggravated robbery. He was seventeen years old at the time of the alleged offense and had earlier unsuccessfully sought to have his case transferred to the juvenile division. During the earlier transfer hearing, the same judge who later presided in Hawkins's criminal trial made some comments that Hawkins found objectionable. He moved to have the trial judge recuse herself from his criminal trial based on the statements she had made during the transfer hearing. The trial court denied the motion. As his sole point of appeal, Hawkins contends the trial court abused its discretion in denying the motion to recuse. We affirm.
On August 7, 2017, at the conclusion of the juvenile-transfer hearing, the trial court commented:
And I have watched your client sit here; he doesn't care. Mr. Bradley, he does not care. He just as soon kill me to look at me and he simply does not care. I am denying the motion for transfer to juvenile court. He'll be tried as an adult in an adult court[.]
At a pre-trial hearing on October 10, 2017, defense counsel asked the trial court to recuse because of those quoted comments. The trial court explained that its comments were prompted by Hawkins's behavior because he was inappropriately smiling despite the seriousness of the charges against him, and the court was merely warning him to behave differently when he came in front of the jury or he would surely be convicted. The court denied the motion to recuse, stating "I'm not biased in any way or form. Just, probably, overly concerned[.]" At the October 25, 2017 jury trial, defense counsel asked to approach the bench during voir dire and renewed the motion to recuse. The trial court again denied it.
We review a trial court's denial of a motion to recuse under an abuse-of-discretion standard. Ferguson v. State , 2016 Ark. 319, 498 S.W.3d 733. A clearly erroneous interpretation or application of a law or rule will constitute a manifest abuse of discretion. Id. The Arkansas Code of Judicial Conduct and its canons are applicable to judicial conduct in criminal cases. Id. Accordingly, a judge presiding over a criminal trial must avoid all appearances of bias. Id. There also exists, however, a presumption of impartiality. Irvin v. State , 345 Ark. 541, 49 S.W.3d 635 (2001). The decision to recuse is within the trial court's discretion, and it will not be reversed absent abuse. Id. An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court, and the burden is on the party seeking to disqualify. Id. To decide whether there has been an abuse of discretion, we review the record to see if prejudice or bias was exhibited. Id.
A trial judge's development of opinions, biases, or prejudices during a trial do not make the trial judge so biased as to require that he or she recuse from further proceedings in the case. Id. Absent some objective demonstration by the appellant of the trial judge's prejudice, it is the communication of bias by the trial judge that will cause us to reverse his or her refusal to recuse. Id. Whether a judge has become biased to the point that the judge should disqualify himself or herself is a matter to be confined to the conscience of the judge. Id. The reason is that bias is a subjective matter peculiarly within the knowledge of the trial judge. Id. When the judge's communications are the basis for an allegation of bias, it is necessary to view the communications that the judge makes to, or in front of, the jury. Id. Statements made before the jury is impaneled and that are in no way communicated to the jury cannot constitute bias or prejudice. Id.
Here, the trial court did not deny making statements critical of Hawkins's behavior at the juvenile-transfer hearing but explained that Hawkins was smiling despite the seriousness of the charges against him, and the court's comments were merely designed to warn him to behave differently when he came in front of the jury or he would surely be convicted. The court denied the motion to recuse, further stating, "I'm not biased in any way or form. Just, probably, overly concerned." More importantly, the trial court's challenged statements occurred at the juvenile-transfer hearing; they were not made at the trial nor in front of the jury. With those statements as the only alleged grounds for trial-court bias, we conclude there is no basis for reversal. As our supreme court explained in Irvin , supra , statements that are not in any way communicated to the jury cannot constitute bias or prejudice.
Affirmed.
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JOHN DAN KEMP, Chief Justice
Appellant Bruce Earl Ward appeals an order of the Jefferson County Circuit Court denying a motion for preliminary injunction and dismissing his complaint against Governor Asa Hutchinson, Wendy Kelley, Director of the Arkansas Department of Correction (ADC); Randy Watson, Warden of Varner Supermax Unit; and Benny Magness, Chairperson of the Arkansas Board of Corrections (collectively "the State"). For reversal, Ward argues that the circuit court erred in dismissing his complaint because Arkansas Code Annotated section 16-90-506(d)(1) (Repl. 2016) violates his constitutional guarantees of due process, pursuant to the United States and Arkansas Constitutions, and the doctrine of separation of powers, pursuant to the Arkansas Constitution. We reverse the circuit court's dismissal of Ward's complaint and remand to the circuit court for further proceedings consistent with this opinion.
I. Facts
In 1990, a Pulaski County Circuit Court jury convicted Ward of capital murder for the death of Rebecca Doss and sentenced him to death by lethal injection. This court affirmed his death sentence in three separate appeals. Ward v. State , 338 Ark. 619, 1 S.W.3d 1 (1999) (affirming death sentence); Ward v. State , 321 Ark. 659, 906 S.W.2d 685 (1995) (per curiam) (reversing death sentence because the record was insufficient and remanding for a new sentencing trial); Ward v. State , 308 Ark. 415, 827 S.W.2d 110 (1992) (affirming capital-murder conviction; reversing death sentence because of an evidentiary error).
On February 28, 2017, Governor Asa Hutchinson issued a warrant scheduling Ward's execution for April 17, 2017. On March 29, 2017, Ward filed a complaint requesting injunctive and declaratory relief. In his complaint, Ward challenged his competence to be executed and requested a hearing. On April 7, 2017, Ward filed his amended complaint and alleged that (1) his execution would violate his right to freedom from cruel and unusual punishment as protected by the Eighth and Fourteenth Amendments to the United States Constitution, because he was incompetent and unable to comprehend a punishment of death; (2) the State had violated the prohibition against cruel and unusual punishment, pursuant to the United States Constitution and article 2, section 9 of the Arkansas Constitution, because solitary confinement had exacerbated his mental condition; (3) section 16-90-506 did not comport with the due-process requirements of the United States and Arkansas Constitutions and was unconstitutional on its face and as applied; (4) section 16-90-506(d)(1) violated the Eighth and Fourteenth Amendments as set forth in Ford v. Wainwright , 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and Panetti v. Quarterman , 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), by statutorily assigning the competency-for-execution decision to the Director; and (5) the Director's determination of Ward's competence violated the state constitutional guarantees of the separation of powers by purporting to confer such authority on the Director. In support of his complaint, Ward submitted the psychological evaluations of Dr. William S. Logan and affidavits of trial counsel and postconviction counsel.
On April 5, 2017, the State moved to dismiss Ward's amended complaint for failure to state a claim under Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. The State asserted that, "as a matter of law, [Ward] was not denied due process when he was not given a hearing"; that section 16-90-506(d)(1) was not unconstitutional on its face or as applied to Ward; that section 16-90-506(d)(1) did not violate the separation-of-powers provision of the Arkansas Constitution; and that there was no legal basis to enjoin Ward's execution. The State contended that the circuit court lacked jurisdiction to stay an execution and that the procedure in section 16-90-506(d)(1) was a proper exercise of executive-branch authority. The State further asserted that Ward's civil-rights claims regarding his confinement were barred because (1) he had not exhausted his administrative remedies, (2) the allegations were untimely, (3) his claims were collateral attempts to challenge the lawfulness of the death sentence, and (4) the State was immune from suit. The State filed a motion to dismiss Ward's amended complaint on April 11, 2017.
Ward filed an objection to the State's motions to dismiss and stated, inter alia ,
With the complaint pending before the court, Mr. Ward has set forth and further intends to augment via Dr. Logan's evaluation and imminent reporting, the requisite showing ... [to] permit, pursuant to a 'substantial threshold showing,' a proper competency-for-execution hearing pursuant to Panetti v. Quarterman , 551 U.S. 930, 949, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), and Ford v. Wainwright , 477 U.S. 399, 409-10, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).
On April 13, 2017, the circuit court entered its order denying Ward's motion for preliminary injunction and granting the State's motion to dismiss Ward's complaint. In its order, the circuit court ruled,
Although [Ward] titles his motion as one seeking a preliminary injunction, it is a request to stay his execution. The law is clear. A circuit court lacks jurisdiction to stay an execution. The motion [for preliminary injunction] is DENIED.
The circuit court also dismissed Ward's complaint, ruling,
The [State has] sovereign and statutory immunity, [Ward] has failed to exhaust his remedies [on his claims concerning confinement], and [Ward] has failed to state a claim for which the court can grant relief. The case is DISMISSED.
That same day, Ward filed an emergency notice of appeal. On April 17, 2017, this court granted an emergency stay of execution filed by Ward. He now brings his appeal from the circuit court's order of dismissal.
II. Procedural Issues
Before reaching the merits of Ward's arguments, we address certain threshold procedural issues raised by the State.
A. Standing
The State argues that Ward does not have standing to pursue a declaratory judgment. The State contends that "the statute has yet to be applied to Ward, so he lacks standing." The State avers that because Ward failed to request the Director to render an opinion on his competency, he lacks standing to challenge the statute.
As a general rule, one must have suffered injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a law. Morrison v. Jennings , 328 Ark. 278, 943 S.W.2d 559 (1997). To have standing to attack the constitutionality of a statute, the appellant must show that the questioned act had a prejudicial impact on him or her. Tauber v. State , 324 Ark. 47, 919 S.W.2d 196 (1996) ; Garrigus v. State , 321 Ark. 222, 901 S.W.2d 12 (1995).
Because of his death sentence, Ward clearly has a personal stake in the outcome of this case. In 1997, he received his third and final death sentence. Governor Hutchinson issued an execution warrant on February 28, 2017. On March 29, 2017, he filed his complaint seeking injunctive and declaratory relief and challenging section 16-90-506(d)(1) on due-process and separation-of-powers grounds. He filed an amended complaint on April 7, 2017. His execution was scheduled for April 17, 2017. This court granted Ward's petition for an emergency stay on the day of his scheduled execution, and the execution warrant did not take effect. However, this fact does not negate his standing to challenge the constitutionality of section 16-90-506(d)(1). Thus, we hold that Ward has standing to bring this action.
B. Preservation of Ward's Arguments
The State presents two preservation arguments to this court as the basis for affirmance. First, the State argues that this court lacks jurisdiction to consider Ward's due-process argument because the circuit court did not specifically rule on the constitutionality of section 16-90-506 when it dismissed his complaint. Second, the State asserts this court should not consider the merits of Ward's arguments because he challenged fewer than all grounds on appeal.
1. Circuit court's ruling
The relevant facts are as follows. Ward filed his complaint for declaratory and injunctive relief in which he raised inter alia his due-process and separation-of-powers claims. The State filed a motion to dismiss and brief in support alleging that pursuant to Arkansas Rule of Civil Procedure 12(b)(6), Ward's due-process and separation-of-powers claims must be dismissed for failure to state a claim upon which relief could be granted. The circuit court stated in its order that it had considered "Ward's motion for preliminary injunction, complaint, and amended complaint, the defendants' motion to dismiss and response to motion for preliminary injunction, examination of exhibits, and review of the applicable law" in making its rulings. The circuit court also considered the parties' briefs in which the due-process and separation-of-powers arguments were discussed. In its order, the circuit court ruled that it dismissed Ward's complaint on the basis that "defendants have sovereign and statutory immunity, plaintiff has failed to exhaust his administrative remedies, and plaintiff has failed to state a claim for which the court can grant relief."
We have repeatedly stated that the failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. Jackson v. State , 334 Ark. 406, 412, 976 S.W.2d 370, 373 (1998). However, in this case, the circuit court ruled that Ward "has failed to state a claim for which the court can grant relief." This ruling goes to the due-process and separation-of-powers claims that Ward raised in his complaint and amended complaint. Thus, we conclude that the constitutional issues are preserved for our appellate review.
2. Independent grounds
The State asserts that this court should summarily affirm the circuit court's dismissal because Ward challenged fewer than all of the circuit court's independent grounds for dismissal of his complaint. Specifically, the State contends that the circuit court's ruling-that the State was entitled to statutory immunity and that Ward failed to exhaust his administrative remedies-are independent grounds for dismissal of Ward's complaint.
This court has stated that when the circuit court bases its decision on two or more independent grounds and appellant challenges fewer than all of the grounds, the appellate court will affirm without addressing either. Coleman v. Regions Bank , 364 Ark. 59, 64, 216 S.W.3d 569, 573 (2005) (citing Pugh v. State , 351 Ark. 5, 89 S.W.3d 909 (2002) ; Pearrow v. Feagin , 300 Ark. 274, 778 S.W.2d 941 (1989) ).
Here, Ward alleged constitutional claims and civil-rights violations in his complaint. In its motion to dismiss, the State asserts that "[t]he civil-rights allegations are flawed for a number of ... reasons." As defenses to those civil-rights allegations, the State asserted (1) Ward's failure to "exhaust the administrative remedies that are mandatory for ADC inmates attempting to bring such claims" and (2) its immunity status pursuant to the Arkansas Civil Rights Act. These two grounds for the circuit court's dismissal-the exhaustion of remedies and sovereign immunity-applied only to the civil-rights allegations that Ward raised in the complaint, and Ward does not raise these two issues on appeal to this court. Accordingly, we hold that Ward's due-process and separation-of-powers arguments are properly preserved.
III. Ward's Arguments
On appeal, Ward argues that the circuit court clearly erred in granting the State's motion to dismiss his complaint. He contends that section 16-90-506(d) violates his right to due process under the United States and Arkansas Constitutions and violates the doctrine of separation of powers under the Arkansas Constitution.
A. Standard of Review
The general rule in cases involving the constitutionality of a statute is that the statute is presumed constitutional, and the burden of proving otherwise is upon the challenger of the statute. Kellar v. Fayetteville Police Dep't , 339 Ark. 274, 5 S.W.3d 402 (1999). "Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable." Id. at 279, 5 S.W.3d 402.
B. Due Process
For the first point on appeal, Ward argues that section 16-90-506(d)(1) is unconstitutional, both on its face and as applied, and violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and article 2, section 9 of the Arkansas Constitution. Specifically, Ward contends that section 16-90-506(d)(1) unconstitutionally delegates the competence inquiry to the Director and denies an incompetent prisoner "any access to the courts to obtain the evidentiary hearing necessary to determine the question of his competence to be executed." He asserts that he "must be afforded access to a court capable of hearing evidence ... to make a 'substantial threshold showing' to obtain the requisite 'fair hearing' in accordance with fundamental fairness," as required by the Court's holdings in Ford and Panetti . Ward urges this court to adopt minimum procedures to comply with Ford and Panetti .
There are two different ways to challenge the constitutionality of a statute. First, a plaintiff can make an as-applied challenge, in which the court assesses the merits of the challenge by considering the facts of the particular case in front of the court, not hypothetical facts in other situations. Laymon v. State , 2015 Ark. 485, at 3, 478 S.W.3d 203, 205. Second, a plaintiff can make a facial challenge, which seeks to invalidate the statute itself. Id. Facial invalidation of a statute is appropriate if it can be shown that "no set of circumstances exists under which the statute would be valid." Martin v. Kohls , 2014 Ark. 427, at 11, 444 S.W.3d 844, 850 (quoting United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). Because the circuit court dismissed Ward's complaint without a hearing, the only issue for this court's review is whether the statute is facially unconstitutional. We do not determine whether the statute is unconstitutional as applied to Ward.
1. Federal law
We first examine the applicable federal law. "[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane." Ford , 477 U.S. at 409-10, 106 S.Ct. 2595. In Ford , the Court heard the appeal of Ford, a Florida death-row inmate, who challenged Florida's statutory scheme "governing the determination of competency of a condemned inmate," which included a "single meeting" of three psychiatrists, who made three different diagnoses and filed their separate reports with the governor, who ultimately rendered a final decision on competency. Id. at 403-04, 106 S.Ct. 2595. The Court concluded that Florida's procedures "for determining sanity [were] inadequate." Id. at 416, 106 S.Ct. 2595. Justice Powell, in a concurrence to the four-justice plurality opinion, stated that "the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it." Id. at 422, 106 S.Ct. 2595. He maintained that a state "may require a substantial threshold showing of insanity merely to trigger the hearing process." Id. at 426, 106 S.Ct. 2595.
Later, in Panetti , 551 U.S. 930, 127 S.Ct. 2842, the Court reviewed Panetti's Ford claim vis-à-vis a similar statutory scheme in Texas. In Panetti , the petitioner raised an incompetency claim after his execution date had been set, and he pursued that claim to no avail in both the state court and the federal courts. The Court held that Texas procedures for preventing the execution of insane individuals "failed to provide ... the minimum process required by Ford ." 477 U.S. at 416-17, 106 S.Ct. 2595. The Court acknowledged that Ford "did not set forth a precise standard for competency." Id. at 956-57, 127 S.Ct. 2842. On the procedural due-process requirements for a competency determination, the Eighth Circuit succinctly explained,
Panetti instructs that " 'a constitutionally acceptable procedure may be far less formal than a trial.' " Panetti , 551 U.S. at 949, 127 S.Ct. 2842 (quoting Ford , 477 U.S. at 427, 106 S.Ct. 2595 ) (Powell, J., concurring). The "basic requirements" of due process include "an opportunity to submit 'evidence and argument from the prisoner's counsel, including expert psychiatric evidence that may differ from the State's own psychiatric examination.' " Id. at 950, 127 S.Ct. 2842 (quoting Ford , 477 U.S. at 427, 106 S.Ct. 2595 ); see also Panetti , 551 U.S. at 951, 127 S.Ct. 2842 ("[The state court] failed to provide petitioner with an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts."); Ford , 477 U.S. at 424, 106 S.Ct. 2595 (Powell, J., concurring) (explaining that the determination of sanity "appear[ed] to have been made solely on the basis of the examinations performed by state-appointed psychiatrists").
Cole v. Roper , 783 F.3d 707, 710-11 (8th Cir. 2015). Because the Panetti court concluded that Panetti's constitutional claims needed to be resolved, the Court reversed and remanded for further proceedings in the federal district court. Panetti , 551 U.S. at 962, 127 S.Ct. 2842.
2. State law
Next, we review the applicable state law. Ward contends that section 16-90-506(d)(1) is unconstitutional because it violates his due-process rights under the federal and state constitutions. Specifically, Ward contends that the statutory scheme mandated in section 16-90-506(d)(1) erroneously places the Director as the arbiter of a competency decision without an evidentiary hearing.
Section 16-90-506(d)(1) provides,
(d)(1)(A)(i) When the Director of the Department of Correction is satisfied that there are reasonable grounds for believing that an individual under sentence of death is not competent, due to mental illness, to understand the nature and reasons for that punishment, the Director of the Department of Correction shall notify the Deputy Director of the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services.
(ii) The Director of the Department of Correction shall also notify the Governor of this action.
(iii) The Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services shall cause an inquiry to be made into the mental condition of the individual within thirty (30) days of receipt of notification.
(iv) The attorney of record of the individual shall also be notified of this action, and reasonable allowance will be made for an independent mental health evaluation to be made.
(v) A copy of the report of the evaluation by the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services shall be furnished to the Mental Health Services Section of the Division of Health Treatment Services of the Department of Correction, along with any recommendations for treatment of the individual.
(vi) All responsibility for implementation of treatment remains with the Mental Health Services Section of the Division of Health Treatment Services of the Department of Correction.
(B)(i) If the individual is found competent to understand the nature of and reason for the punishment, the Governor shall be so notified and shall order the execution to be carried out according to law.
(ii) If the individual is found incompetent due to mental illness, the Governor shall order that appropriate mental health treatment be provided. The Director of the Department of Correction may order a reevaluation of the competency of the individual as circumstances may warrant.
(2) When the Director of the Department of Correction is satisfied that there are reasonable grounds for believing that a female convict under sentence of death is pregnant, he or she shall suspend the execution until it appears that she is not pregnant or until she has delivered the child.
Ark. Code Ann. § 16-90-506(d)(1) (emphasis added).
In Arkansas, the standard for determining competency for purposes of execution is whether a condemned person understands "the nature and reasons for that punishment." Ark. Code Ann. § 16-90-506(d)(1)(A)(i). In Singleton v. Endell , 316 Ark. 133, 870 S.W.2d 742 (1994), this court decided whether Singleton was entitled to a hearing as provided in Ford , 477 U.S. 399, 106 S.Ct. 2595. The circuit court had denied the relief requested by Singleton, and this court affirmed. We considered only Singleton's challenge that section 16-90-506(d)(1) was procedurally insufficient to comply with the requirements of Ford and stated that "[w]e cannot know that Mr. Singleton and his counsel would be precluded from participating and presenting evidence of his insanity if such a hearing were held pursuant to § 16-90-506(d)(1)." Singleton , 316 Ark. 133, 870 S.W.2d at 747. We emphasize that our decision in Singleton predates the Court's decision in Panetti , 551 U.S. 930, 127 S.Ct. 2842. Since Singleton , this court has not revisited the constitutionality of section 16-90-506(d)(1).
3. Analysis
Mindful of this well-established precedent, we review the language of section 16-90-506(d)(1)(A) :
(d)(1)(A)(i) When the Director of the Department of Correction is satisfied that there are reasonable grounds for believing that an individual under sentence of death is not competent, due to mental illness, to understand the nature and reasons for that punishment, the Director of the Department of Correction shall notify the Deputy Director of the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services.
This statutory provision authorizes the Director to initiate a determination of competency "[w]hen the Director ... is satisfied that there are reasonable grounds for believing that [the death-row inmate] is not competent," and at that time, "the Director ... shall notify the Deputy Director of the Division of Aging ... of ... [DHS]." Simply put, section 16-90-506(d)(1)(A) is devoid of any procedure by which a death-row inmate has an opportunity to make an initial "substantial threshold showing of insanity ... to trigger the hearing process" pursuant to Ford , 477 U.S. at 426, 106 S.Ct. 2595. Nor does the language of section 16-90-506(d)(1)(A) provide for an evidentiary hearing that comports with the fundamental principles of due process, as articulated in Ford and Panetti . Therefore, we hold that section 16-90-501(d)(1) is unconstitutional on its face and violates the due-process guarantees of the United States and Arkansas Constitutions. We overrule Singleton , 316 Ark. 133, 870 S.W.2d 742, to the extent that it conflicts with our holding in this opinion.
Because we reverse the circuit court's dismissal and hold that section 16-90-506(d)(1) is unconstitutional, we decline to address Ward's remaining argument on the doctrine of separation of powers.
IV. Conclusion
We reverse the circuit court's dismissal of Ward's complaint and remand to the circuit court for further proceedings consistent with this opinion.
Hart, J., concurs.
Baker, Wood, and Womack, JJ., dissent.
I agree with the decisions reached by Justices Kemp, Goodson, and Wynne in rejecting the State's procedural arguments in the case at bar.
First, the State argues that Ward lacks standing to challenge the constitutionality of the Director's Statute. I disagree. Ward has standing to argue the constitutionality of Ark. Code Ann. § 16-90-506(c) - (d) (the "Director's Statute") because he is under sentence of death and has a personal stake in the determination of the Director's Statute's constitutionality. Furthermore, the State asserts that the Director's Statute is the only means by which Ward can raise the issue of his insanity, yet the State cannot identify any provision of the Director's Statute that Ward has failed to satisfy in order to invoke any right or protection it might supply to him.
Second, the State argues that Ward's challenge to the constitutionality of the Director's Statute is barred for failing to obtain a ruling on the constitutionality argument. I disagree; the circuit court did rule upon Ward's arguments as to the Director's Statute's constitutionality. The circuit court's holding that Ward "has failed to state a claim for which the court can grant relief" goes directly to Ward's claims regarding the constitutionality of the Director's Statute and the State's corresponding argument raised in its motion to dismiss, which asserted that Ward's constitutional challenges should be rejected specifically pursuant to Arkansas Rule of Civil Procedure 12(b)(6) for failure to state a legally cognizable claim.
Third, the State argues that Ward's challenge to the Director's Statute's constitutionality is barred for failing to appeal independent grounds that would adequately dispose of his constitutional claims. I disagree. The grounds in question are the circuit court's holdings that the State has "statutory immunity" and that Ward has "failed to exhaust his administrative remedies." Statutory immunity and failure to exhaust administrative remedies are issues that would pertain to Ward's civil-rights claims under 28 U.S.C. § 1983, but they have no legal bearing upon Ward's claims that the Director's Statute is unconstitutional or his ability to appeal the circuit court's dismissal thereof.
Finally, as to the merits of Ward's arguments on appeal, I join the disposition reached by Justices Kemp, Goodson, and Wynne. The Director's Statute does not satisfy federal due process requirements, but I write separately for the reasons stated in my concurring opinion in Greene v. Kelley , 2018 Ark. 316, (Hart, J., concurring), handed down on this same day. Accordingly, it is unnecessary to address Ward's argument regarding the separation of powers.
I dissent from the majority opinion because the majority errs in its holding regarding the justiciability of Ward's claim and fails to adhere to the doctrine of stare decisis.
First, the majority neglects to address the procedural problem in this case. On February 27, 2017, Governor Asa Hutchinson scheduled Ward's execution for April 17, 2017. On March 29, 2017, Ward filed a complaint for declaratory and injunctive relief in the Jefferson County Circuit Court. The complaint alleged that Ward was incompetent to be executed under Ford v. Wainwright , 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and Panetti v. Quarterman , 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). The complaint further alleged that Ark. Code Ann. section 16-90-506(d)(1) violated his due-process rights by allowing the Director of the Arkansas Department of Correction to make the threshold determination of competence to be executed. However, Ward did not request a competency determination of any kind from Kelley with respect to his 2017 execution, while Ward requested a determination when Ward was set to be executed on October 21, 2015. Further, after filing his lawsuit on March 29, 2017, Ward scheduled a psychological examination to be conducted on April 1, 2017, by his own expert, but then cancelled the April 1, 2017, examination, and postponed it for a later date. However, Ward never rescheduled the examination. In Cummings v. City of Fayetteville , 294 Ark. 151, 154-55, 741 S.W.2d 638, 639-40 (1987), we explained that "the declaratory judgment statute ... does not undertake to decide the legal effect of laws upon a state of facts which is future, contingent or uncertain." Accordingly, this court should not undertake determining the legal effects of the law upon what may happen in the future with regard to Ward's competency.
Second, I dissent from the majority opinion because the majority has failed to adhere to the doctrine of stare decisis. "As a general rule, we are bound to follow prior case law under the doctrine of stare decisis, a policy designed to lend predictability and stability to the law. Ward v. State , 2015 Ark 62, at 5, 455 S.W.3d at 833." Ward v. State , 2018 Ark. 59, 5, 539 S.W.3d 546, 549. In the absence of a palpable error in legal analysis, prior precedent governs unless the result is patently wrong or manifestly unjust. Ward v. State , 2015 Ark. 62, 455 S.W.3d 830 ; Nooner v. State , 2014 Ark. 296, 438 S.W.3d 233.
Yet, despite this long-established precedent, the majority ignores this doctrine.
Simply put, Singleton is controlling of Ward's facial challenge to section 16-90-506(d)(1) on due-process grounds and the majority ignores Singleton . The majority states: "Since Singleton , this court has not revisited the constitutionality of section 16-90-506(d)(1)." This statement is not supportive of its analysis because although Singleton was issued prior to the Supreme Court's opinion in Panetti , the Panetti decision did not expand the holding in Ford to require states to provide due-process protection at the pre-threshold stage of a competency determination. It was not controverted in Panetti that the defendant had made a substantial threshold showing of his incompetence. Thus, the issue in that case was not the pre-threshold inquiry but rather the correct standard by which to determine the defendant's competence. Although Panetti clarified that the defendant must have a rational understanding of the reason for his execution, it did not alter the procedural due-process requirements set forth in Ford . Simply put, Singleton is controlling. Therefore, the circuit court did not err by dismissing Ward's facial challenge to section 16-90-506(d)(1) on due-process grounds and I would affirm the circuit court.
Wood and Womack, JJ., join.
Ward refers to section 16-90-506(d)(1) as the "Director's Statute," while the State introduces section 16-90-506(d)(1) as the "Stay of Execution" statute. This opinion references the statute by its section number.
Ward does not appeal the circuit court's ruling denying his motion for a preliminary injunction. Nor does he appeal the circuit court's rulings on the claims concerning solitary confinement and the circuit court's ruling on the exhaustion of remedies.
In oral argument, the State relied heavily on historical practices of the Director to review the mental-health file of the death-row inmate to justify the statutory procedures set forth in section 16-90-506(d)(1)(A). However, we do not glean this specific process in the express language of section 16-90-506(d)(1)(A), nor do we take judicial notice of it. | [
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MIKE MURPHY, Judge
Judith Stegall appeals the April 13, 2017 order of the Washington County Circuit Court ordering her into long-term protective custody of the Arkansas Department of Human Services (DHS). On appeal, Stegall argues that (1) probable cause did not exist to place her in the long-term custody of DHS and (2) the institutional care she was receiving was not the least-restrictive environment to meet her needs. We affirm.
On March 2, 2017, DHS filed a petition for emergency custody, alleging that Stegall is an endangered or impaired adult pursuant to the Adult Maltreatment Custody Act. DHS had received a referral that Stegall's heat and electricity were turned off, she had lost her medications, forgot to eat and was losing weight, and had a history of alcohol abuse. The affidavit included with the petition for emergency custody further alleged that an investigator for adult protective services made three visits to Stegall's home in mid-February and administered two mini mental-status exams. Stegall scored a 26/30 both times. A seventy-two-hour hold was placed on Stegall for cognitive assessment. An ex parte order for emergency custody was entered that same day.
A probable-cause hearing was held on March 7, 2017. At the hearing, DHS offered an affidavit of Stephen Dollins, a board-certified psychiatrist, who had evaluated Stegall five days prior. In his affidavit, he provided that Stegall "has major vascular neurocognitive disorder, moderate to severe stage, and that the least restrictive environment is assisted living with a dementia unit or nursing home care-needs 24 hour care." DHS also introduced a neuropsychological evaluation by another doctor, Dr. Chambers, which provided that Stegall required "24/7 assistance." Stegall's daughter testified that she was working on getting her mother into an assisted-living facility closer to her in Missouri.
The trial court found that the DHS worker was very credible, and it gave significant weight to the affidavit and exhibit of the two doctors who both diagnosed Stegall with dementia and recommended around-the-clock care. It found that probable cause existed to continue placement with DHS and ordered DHS to place Stegall at "an appropriate facility that meets [her] needs" and to provide her with "physical, mental or emotional care as required in the opinion of a duly authorized or licensed physician."
A long-term-care hearing was held on April 13, 2017. The testimony at the second hearing was mostly duplicative of the first. The DHS investigator testified that a third doctor, Dr. Miller, evaluated Stegall and also recommended "24/7 nursing care in a long-term care facility." He testified that Dr. Miller also diagnosed Stegall with "major vascular neurocognitive disorder and behavioral disturbance-moderate stage."
Stegall also testified. She said that she would like to either go home or be let out to go live in an assisted-living facility nearer to her daughter. She testified that she would like some crochet supplies and that if DHS was planning on taking her into custody that it spend its own money to do it, and not hers. She said that she thought she was stable and capable of taking care of herself. She recognized that she may need some assistance in the future, but she said that, for right now, she was fine. She said that she was looking forward to her son getting out of jail in June and that he could come live with her when he got out. She testified that she could not remember why he was in jail.
At the conclusion of the hearing, the trial court found probable cause existed to grant long-term custody of Stegall to DHS. This appeal follows.
The standard of review for probate matters is de novo, and this court will not reverse the trial court's findings unless they are clearly erroneous, giving due regard to the opportunity and superior position of the probate court to determine the credibility of witnesses.
Howard v. Ark. Dep't of Human Servs. , 2017 Ark. App. 68, at 4, 512 S.W.3d 676, 679. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Id. at 5, 512 S.W.3d at 679.
The purpose of the Adult Maltreatment Custody Act is to (1) protect a maltreated adult or long-term-care facility resident who is in imminent danger; and (2) encourage the cooperation of state agencies and private providers in the service-delivery system for maltreated adults. See Ark. Code Ann. § 9-20-102 (2017); Howard , 2017 Ark. App. 68, at 5, 512 S.W.3d at 679-80. The Act gives jurisdiction to the probate division of the circuit court over proceedings for custody, temporary custody for purposes of evaluation, court-ordered protective services, or an order of investigation pursuant to the Act. See Ark. Code Ann. § 9-20-108(a)(1) ; Howard , 2017 Ark. App. 68, at 5, 512 S.W.3d at 680.
The probate court may order long-term custody with DHS if the court determines that (1) the adult has a mental impairment, a physical impairment, or lacks the capacity to comprehend the nature and consequences of remaining in a situation that presents an imminent danger to her health or safety; (2) she is unable to provide for her own protection from maltreatment; and (3) the court finds clear and convincing evidence that the adult is in need of placement as provided in the Act. Ark. Code Ann. § 9-20-117(c) ; Howard , 2017 Ark. App. 68, at 5, 512 S.W.3d at 680. Adult maltreatment, as defined, includes abuse, exploitation, neglect, physical abuse, or sexual abuse of an adult. Ark. Code Ann. § 9-20-103(2) ; Doran v. Ark. Dep't of Human Servs. , 2014 Ark. App. 505, at 4, 442 S.W.3d 868, 871.
Stegall first argues that there was no probable cause to place her in the long-term custody of DHS based on a poor memory, not being as politically educated as other people, or not knowing when her son may or may not parole out of prison. We disagree. The trial court specifically found in its order for long-term protective custody that Stegall
lacks the capacity to comprehend the nature and consequences of remaining in a situation that presents an imminent danger to her health or safety and [Stegall] has a mental or physical impairment that prevents [Stegall] from protecting herself from imminent danger to her health or safety. More specifically: is diagnosed with major vascular neurocognitive disorder, lacks the capacity to live independently and requires twenty four hour care.
In making this determination, the evidence that supports this decision includes three physician affidavits all diagnosing Stegall with dementia and recommending long-term care with DHS; testimony from a DHS investigator about his interactions with Stegall and her scores on a mini mental-status exam; and Stegall's own testimony, including her testimony that she could not remember when her son would be paroled but that, despite being in jail for abusing her, he could come live with her when he got out. The court expressed concern with Stegall's ability to protect herself from harm and her ability to take care of herself and remember her medications. We are not left with a definite and firm conviction that a mistake has been committed.
Stegall next argues that it was reversible error for the court to find that institutional care was the least-restrictive alternative. Arkansas Code Annotated section 9-20-117(d)(1) provides that "[t]he court shall make a finding in connection with the determination of the least restrictive alternative to be considered proper under the circumstances, including a finding for noninstitutional care if possible."
Stegall contends that a nursing home was not the least-restrictive alternative and that she should have been placed in an assisted-living facility instead. At the long-term-placement hearing, there was a discussion about DHS's ability to place Stegall in an assisted-living facility. The investigator was candid with the court: "So what we've got is we've got medical recommendations that acknowledge a range of debilitation. However, we have no solution that offers a range of supervision." Assisted-living facilities or alternative-care options like Home Instead Senior Care, the investigator explained, did not fall under DHS's umbrella of services it provided or paid for, and it did not have the ability to supervise them.
In its order, the court found
that [Stegall] is in need of placement. [DHS] is awarded long term custody of [Stegall]. Placement of [Stegall] shall be at an appropriate facility in the least restrictive environment that best meets [her] needs. At this time, there are not sufficient services available to [Stegall] for non-institutional care or court-ordered protective services to provide a viable alternative to protective custody.
In her reply, Stegall argues that multiple providers indicated that Stegall could benefit from assisted living and that the only reason Stegall is in a nursing home instead of an assisted-living facility is because DHS is unwilling to pay for it. She contends that the state's inability to pay for services does not relieve it from finding the least-restrictive placement. Stegall's argument, however, ignores that the court did not explicitly order nursing-home care over assisted living for Stegall; instead it ordered DHS to place Stegall at an appropriate facility in the least-restrictive environment that best meets her needs. Furthermore, two of three physicians averred that nursing-home care was a least-restrictive-placement option for Stegall. The trial court weighing the evidence differently than appellant wanted it weighed is not reversible error. Cox v. Ark. Dep't of Human Servs. , 2015 Ark. App. 202, at 11, 462 S.W.3d 670, 677. To reverse on this basis would require this court to act as a super fact-finder or second-guess the trial court's credibility determination, which is not our function. Id. Thus, we hold that the trial court's findings regarding placement were not clearly erroneous.
Affirmed.
Virden and Klappenbach, JJ., agree.
A 27/30 is considered passing. Questions include "who is the current president," "spell the word 'world' forward and backward," and "what day of the week is it."
He was in jail for committing domestic battery against Stegall. | [
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KENNETH S. HIXSON, Judge
Appellant Jonathan Scott Trotter, age twenty-eight, was convicted in a jury trial of two counts of rape and two counts of second-degree sexual assault committed against a thirteen-year-old girl named R.S. For these offenses, Mr. Trotter was sentenced to thirty years in prison. Mr. Trotter now appeals, raising two arguments. First, he argues that there was insufficient evidence to support his convictions. Next, he argues that the trial court erred in denying his motion to declare Ark. Code Ann. § 5-14-102 (Repl. 2013) unconstitutional. We affirm.
Pursuant to Ark. Code Ann. § 5-14-103(a)(3)(A), a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Pursuant to Ark. Code Ann. § 5-14-125(a)(3), a person commits second-degree sexual assault if the person, being eighteen years of age or older, engages in sexual contact with another person who is less than fourteen years of age.
When an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Bohanan v. State , 72 Ark. App. 422, 38 S.W.3d 902 (2001). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty without resort to conjecture. Breedlove v. State , 62 Ark. App. 219, 970 S.W.2d 313 (1998). We review the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Morton v. State , 2011 Ark. App. 432, 384 S.W.3d 585.
Before trial, Mr. Trotter filed a motion to declare Ark. Code Ann. § 5-14-102 unconstitutional.
That statute provides, under subsection (b):
(b) When the criminality of conduct depends on a child's being below fourteen (14) years of age and the actor is twenty (20) years of age or older, it is no defense that the actor:
(1) Did not know the age of the child; or
(2) Reasonably believed the child to be fourteen (14) years of age or older.
Ark. Code Ann. § 5-14-102(b). In his motion, Mr. Trotter argued that the above provision, which prohibits a defendant from using mistake of age as a defense when the victim is less than fourteen years of age, violates due process and his right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 2, section 10 of the Arkansas Constitution. Mr. Trotter asserted that R.S. had posted on the internet that she was born on May 3, 1997, which would have made her nineteen years old during the relevant time frame. Mr. Trotter asserted further that R.S. had posted pornography and other sexual statements on the internet and was engaging in activity normally engaged in only by adults. He thus posited that R.S. should be held to an "adult standard." Mr. Trotter contended that the challenged statute assumes that every person under the age of fourteen is the same when, in fact, they differ in size, shape, behavior, and maturity. Citing cases from other states, Mr. Trotter argued that Arkansas should allow mistake of age as a defense.
A pretrial hearing was held on Mr. Trotter's motion, and Mr. Trotter testified at the hearing. Mr. Trotter testified that R.S. had approached him on social media, and on her Facebook page she represented that she was born on May 3, 1997. Mr. Trotter stated that R.S. deceived him into thinking she was nineteen years old. Mr. Trotter further testified that R.S. "flaunted herself" by posting half-naked pictures of herself on her Facebook page. Mr. Trotter stated that R.S. did not look like a thirteen-year-old or carry herself like a thirteen-year-old. He also stated that she displayed adult behavior, including smoking cigarettes and telling him that she recently had a baby. Mr. Trotter admitted that R.S. is thirteen years old and that he had sexual intercourse with her. However, he testified that he wanted to take some responsibility, but not full responsibility, because had he known R.S.'s age he would not have had sex with her.
At the conclusion of Mr. Trotter's testimony at the pretrial hearing, the trial court denied Mr. Trotter's motion to declare Ark. Code Ann. § 5-14-102 unconstitutional. The trial court also ruled that the aforementioned information and pictures posted by R.S. on her Facebook page were not relevant and inadmissible at trial.
The State presented two witnesses at the jury trial. The first was Officer Jesus Coronado, and the second was the victim, R.S.
Officer Coronado investigated the case after receiving a report that Mr. Trotter had engaged in sexual intercourse with R.S. Officer Coronado interviewed R.S., and during the interview R.S. stated that she had sexual intercourse with Mr. Trotter in July 2016 and again in August 2016. On the following day, after administering Miranda warnings, Officer Coronado interviewed Mr. Trotter. During that interview, Mr. Trotter admitted that he had sexual intercourse with R.S.
R.S. testified that she is thirteen years old. She stated that she met Mr. Trotter in person but that they also communicated on Facebook. R.S. testified that she had sexual intercourse with Mr. Trotter in his apartment on two separate occasions. On the first occasion, in July 2016, Mr. Trotter began kissing R.S. and rubbing her buttocks with his hand. Mr. Trotter then pulled R.S.'s pants down, rubbed her vagina with his hand, and put his penis in her vagina. On the second occasion, in August 2016, Mr. Trotter began kissing R.S. and touching her breasts with his hand. R.S. testified that during this second episode, Mr. Trotter again put his penis in her vagina.
Mr. Trotter testified for the defense. He stated that he met R.S. on social media and that they would talk and "smoke weed" together. Mr. Trotter acknowledged that he had sexual intercourse with R.S., although he stated that it happened only one time. He stated, "I did put my penis in her vagina."
Based on this testimony, the jury found Mr. Trotter guilty of two counts each of rape and second-degree sexual assault. Mr. Trotter received an aggregate sentence of thirty years in prison.
Mr. Trotter's first argument on appeal is that there was insufficient evidence to support his convictions. Mr. Trotter does not argue that he did not have sexual contact or sexual intercourse with R.S. Instead, he argues that the State failed to prove that he used forcible compulsion against R.S. Mr. Trotter submits that R.S. was a willing participant and that he used no force whatsoever for them to have sex.
It is well settled that the testimony of a rape victim, standing alone, is sufficient to support a conviction if the testimony satisfies the statutory elements of rape. Rohrbach v. State , 374 Ark. 271, 287 S.W.3d 590 (2008). In this case, the testimony of R.S. was alone sufficient to support Mr. Trotter's convictions for rape and second-degree sexual assault. Contrary to Mr. Trotter's argument, the State was not required to prove forcible compulsion. A person commits rape if he engages in sexual intercourse with a person who is less than fourteen years of age, Ark. Code Ann. § 5-14-103(a)(3)(A), and a person commits second-degree sexual assault if he is eighteen years of age or older and engages in sexual contact with a person who is less than fourteen years of age, Ark. Code Ann. § 5-14-125(a)(3). R.S. testified that she is thirteen years old, and she described in detail two episodes where Mr. Trotter engaged in both sexual intercourse and sexual contact with her. This testimony amounts to substantial evidence to support Mr. Trotter's convictions.
Mr. Trotter's remaining argument is that the trial court erred by not declaring Ark. Code Ann. § 5-14-102 unconstitutional. In particular, Mr. Trotter challenges as unconstitutional subsection 102(b), which provides that when the criminality of conduct depends on a child's being below fourteen years of age and the actor is twenty or older, it is no defense that the actor did not know the age of the child or reasonably believed the child to be fourteen or older. Mr. Trotter argues that this prohibition against using mistake of age as a defense violated his right to a fair trial and due process under both the United States Constitution and the Arkansas Constitution.
This issue is easily dispensed with based on our supreme court's holding in Gaines v. State , 354 Ark. 89, 118 S.W.3d 102 (2003). In Gaines , the appellant was convicted of rape committed against a thirteen-year-old girl and raised the same constitutional argument being raised here. Our supreme court in Gaines held that denying the defendant a mistake-of-age defense pursuant to Ark. Code Ann. § 5-14-102 did not offend due process or the defendant's right to a fair trial, and did not violate either the United States Constitution or the Arkansas Constitution. We are without authority to overrule decisions of the supreme court, and we are bound to follow its decisions. Lee v. State , 2010 Ark. App. 224, 2010 WL 893628. As this issue has been squarely decided by our supreme court in Gaines , we reject Mr. Trotter's argument that Ark. Code Ann. § 5-14-102 is unconstitutional.
Affirmed.
Abramson and Virden, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
Roy Tuccillo appeals a judgment of the Pope County Circuit Court finding him personally liable to appellee Adkins & Associates, Inc. ("Adkins"), for $ 100,800, plus interest and attorney's fees. On appeal, he argues that the circuit court erred in two respects: (1) in finding that issuance of the summons was properly effectuated pursuant to Arkansas Rule of Civil Procedure 4(a) (2018); and (2) in finding that he personally guaranteed the debts of his company, Anchor Frozen Foods ("Anchor"). We find no error and affirm.
I. Background
Adkins is an Arkansas-based poultry broker. Tuccillo is the president and majority stockholder of a New York-based company, Anchor Frozen Foods. Adkins began selling frozen chicken to Anchor in 2009. To accomplish shipment orders without prepayment, Adkins required Anchor to complete a "Customer Profile Form." Adkins forwarded the form to Anchor, and Anchor returned the form completed with Tuccillo's signature at the bottom.
In March 2012, Anchor ordered 60,000 pounds of frozen chicken from Adkins with a total purchase cost of $ 100,800. Adkins shipped the chicken to Anchor, but Anchor objected to the weight of the goods and refused to pay. Adkins initially attempted collection against Anchor. When those efforts failed, Adkins filed a complaint against Tuccillo, asserting that he had personally guaranteed payment of the Anchor account. Tuccillo answered Adkins's complaint, admitting that Anchor purchased chicken from Adkins but denying that he personally guaranteed payment for Anchor's debts. In addition, Tuccillo asserted insufficiency of service of process as an affirmative defense.
The circuit court was essentially called on to decide two issues: (1) Was Tuccillo properly served under Rule 4(a) of the Arkansas Rules of Civil Procedure ? and (2) Did Tuccillo personally guarantee payment for Anchor? The circuit court found that Tuccillo had been properly served. The court also determined that Adkins had proved the validity of Tuccillo's signature on the guarantee agreement; alternatively, the court found that by his conduct, Tuccillo was estopped from denying the validity of the agreement. The circuit court entered judgment finding that Tuccillo was indebted to Adkins in the amount of $ 100,800, plus interest and attorney's fees. Tuccillo timely appealed.
II. Issuance of Summons
In his first argument on appeal, Tuccillo argues that the circuit court erred in finding that service of process in this case complied with Rule 4(a) of the Arkansas Rules of Civil Procedure. To address this argument, we provide more details concerning the filing of Adkins's complaint, the issuance of summons, and the service on Tuccillo.
Adkins filed its complaint on June 20, 2014. That same day, the Pope County circuit clerk issued a summons informing Tuccillo that the lawsuit had been filed against him. Adkins began its efforts to serve Tuccillo, but these efforts proved difficult. Adkins was required to file multiple motions for extension of time to complete service, each of which was granted. A New York-based process server finally hand-delivered a copy of a summons and complaint on Tuccillo on December 13, 2016. The summons that was eventually served, however, bore a date of June 8, 2016, not the original summons date of June 20, 2014. Tuccillo contends that service on him of a summons dated 719 days after the filing of the complaint was in violation of Rule 4(a) of the Arkansas Rules of Civil Procedure.
Rule 4(a) sets out the requirement for the issuance of a summons and provides that "[u]pon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a person authorized by this rule to serve process." Here, the Pope County circuit clerk issued a summons on June 20, 2014, the date of the filing of the complaint. We conclude that this action of the clerk satisfies the language of Rule 4(a) requiring the summons to issue "forthwith."
Tuccillo argues on appeal that he was not served with the summons that had been issued forthwith upon the filing of the lawsuit, on June 20, 2014. Instead, he asserts that he was served with a "completely different" summons dated June 8, 2016. Tuccillo asserts that Adkins served him with a summons dated 719 days after the filing of the complaint, "in violation of the requirement that the summons issue 'forthwith' upon filing of the complaint."
In support of this argument, Tuccillo cites cases holding that the service requirements of Rule 4 must be strictly construed and exactly complied with. See, e.g. , Smith v. Sidney Moncrief Pontiac, Buick, GMC Co. , 353 Ark. 701, 120 S.W.3d 525 (2003) ; Vinson v. Ritter , 86 Ark. App. 207, 167 S.W.3d 162 (2004). We agree that the technical requirements of a summons set out in Ark. R. Civ. P. 4(b) must be construed strictly, and compliance with them must be exact. Wilkins v. Food Plus, Inc. , 99 Ark. App. 64, 68, 257 S.W.3d 107, 111 (2007) (citing Tobacco Superstore, Inc. v. Darrough , 362 Ark. 103, 207 S.W.3d 511 (2005) ); see also Davis v. Shelter Ins. , 2017 Ark. App. 656, at 4, 536 S.W.3d 621, 625 (" Rule 4(b)'s technical requirements must be construed strictly, and compliance with them must be exact."). We do not find Tuccillo's arguments persuasive, however.
The plain language of Rule 4(a) states only that the summons be issued "forthwith." Nothing in Rule 4(a), however, expressly provides that the summons must thereupon be served "forthwith." Instead, Rule 4(i) allows 120 days for serving the summons and complaint, unless the court extends the time for service upon good cause shown. As noted above, Tuccillo does not challenge any of the extensions that were granted by the circuit court, and any delay necessitating the issuance of a new summons reflecting the office of the circuit clerk's current personnel was because of Tuccillo's efforts to avoid service. Because he cites no authority that dictates that a subsequent, duplicate summons is ineffective when the first summons was issued "forthwith" upon the filing of the complaint, we affirm on this point.
III. Personal Guaranty
In his second point on appeal, Tuccillo argues that the circuit court erred in finding that he personally guaranteed Anchor's debts. To address this issue, we examine the "Customer Profile" document between Adkins and Anchor. For clarity, we reproduce pertinent portions of the form here:
ADKINS & ASSOCIATES CUSTOMER PROFILE NAME OF BUSINESS: Anchor Frozen Foods TRADE NAME: _________________ BILLING ADDRESS: PO Box 887 Westbury NY 11590 SHIPPING ADDRESS: 28 Urban Ave Westbury NY 11590 NAME(S) OF OWNER, PARTNERS, OR OFFICERS NAME: Roy Tuccillo TITLE: President
Tuccillo thus represented himself at the top of the document as "President" of Anchor. The document further contained the following relevant language:
In consideration of the extension of credit by Adkins & Associates ("Adkins & Assoc.") the undersigned ("Purchaser") at any time and from time hereafter agrees to pay for each purchase of goods or services according to the terms in effect at the time of such purchase as shown on this invoice, statement, or quotation rendered with such purchase. If the purchaser defaults on its payments to Adkins & Assoc., the purchaser agrees to pay all cost of collection, including reasonable attorney's fees, whether or not litigation is actually commenced.
If the purchaser is not an individual, the person or persons (collectively "Guarantor") signing on behalf of the purchaser does (do) hereby personally guarantee to Adkins & Assoc. payment of all [of] purchaser's obligations to Adkins & Assoc. incurred now and hereafter, including cost of collection and reasonable attorney's fees. The guarantor's guarantee shall be continuing in nature, shall continue in full force and effect without limitations, and shall extend to all purchases from Adkins & Assoc. until such time as the guarantor shall give written notice of revocation to Adkins & Assoc. by certified mail, return receipt requested, provided, however, such revocation shall not affect the guarantor's obligations with respect to indebtedness to Adkins & Assoc. existing prior to the receipt of such notice of revocation. The guarantor expressly waives demand, presentment, protest, and notice of acceptance of this guarantee and any extensions of credit for any purchases.
At the bottom of the document the name Roy Tuccillo is listed as the guarantor, along with a signature purporting to be that of Roy Tuccillo and Tuccillo's title of "President."
In its findings of fact and conclusions of law, the circuit court found that Tuccillo's signature on the guaranty agreement was authentic, expressly crediting the testimony of Adkins employee Neal Westbrook, who explained that he sent the form to Anchor and advised Tuccillo that the guaranty form would have to be executed before Adkins would extend credit to Tuccillo and Anchor. On appeal, Tuccillo does not contest the circuit court's finding that the signature on the guaranty agreement was authentic. Instead, he argues that the circuit court erred in finding that he personally guaranteed the debts of Anchor.
Pointing to three separate portions of the agreement, Tuccillo argues that the language of the agreement itself does not bind him. Tuccillo first points to the opening paragraph of the agreement, which contains the following sentence: "[T]he undersigned ('Purchaser') at any time and from time hereafter agrees to pay for each purchase of goods or services according to terms in effect at the time of such purchase." He then points to the next paragraph, which states that "[i]f the purchaser is not an individual, the person or persons (collectively 'Guarantor') signing on behalf of the Purchaser does (do) hereby personally guarantee to Adkins & Assoc. payment of all Purchaser's obligations to Adkins & Assoc." Finally, he points to his signature at the bottom of the agreement. He then posits a somewhat convoluted syllogism: The "purchaser" is the undersigned; the "undersigned" is Roy Tuccillo, an individual; because the purchaser is an individual, the language following "if the Purchaser is not an individual" does not apply; and therefore, he is not bound by the language of the agreement.
We simply cannot find merit in this tortured argument. As found by the circuit court, and unchallenged on appeal, Tuccillo signed the agreement captioned as a "customer profile," and he signed the bottom of the document as "President." President of whom or what? The business named at the top of the agreement as the customer is Anchor Frozen Foods, and no other company is named on the document. Clearly, the "purchaser" under this agreement is Anchor, and Tuccillo quite plainly signed the document as the president of Anchor. By the plain language of the agreement, Anchor agrees to pay Adkins; if Anchor does not pay, then Tuccillo is bound as guarantor.
Tuccillo's reliance on Sysco Food Services v. Coleman , 227 Ga.App. 460, 489 S.E.2d 568 (1997), is misplaced. There, although the alleged guaranty agreement identified the purchaser, it left blank the name of the principal debtor and the name of the person individually guaranteeing the indebtedness. Accordingly, the Georgia Court of Appeals held that the agreement was unenforceable because it failed to satisfy the statute of frauds. Sysco Food Servs. , 489 S.E.2d at 569-70. The court further held that, because Georgia law expressly prohibited the extension of a suretyship contract by implication, the lower court was correct when it found that in order to determine the identity of the debtor, it would have to make inferences and consider impermissible parol evidence. Id. at 570.
These principles simply are not applicable here. The document plainly names the purchaser and the guarantor. There is no statute-of-frauds issue, nor was one raised at trial; and there is no need to resort to inference or parol evidence to determine the identity of the debtor. Simply put, Tuccillo is trying to create ambiguity where none exists.
Our standard of review on appeal is whether the circuit court's findings were clearly erroneous or clearly against a preponderance of the evidence. Peregrine Trading, LLC v. Rowe , 2018 Ark. App. 176, 546 S.W.3d 518. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. Id. We are not convinced that a mistake has been committed; therefore, we affirm the finding of the circuit court that the guaranty agreement bound Tuccillo personally to pay the debts of Anchor.
Affirmed.
Virden and Klappenbach, JJ., agree.
Adkins filed a separate lawsuit against Anchor for collection of debt, which was dismissed without appeal.
In addition to the answer, Tuccillo raised both the personal-guarantee argument and the sufficiency of service in a motion for summary judgment, which was denied by the court.
Tuccillo does not challenge any of the extensions of time, nor does he argue that the service that was ultimately had on him was untimely.
An amended version of Rule 4(a) went into effect January 1, 2019, but that version was not in effect at the time the summonses were issued in this case.
The summons that was eventually served is dated June 8, 2016, and is identical to the June 20, 2014 summons in every respect save for the names of the clerk and the deputy clerk, and it omits Tuccillo's address.
Moreover, this court has noted that "forthwith" does not mean a specific number of days. See, e.g. , Maestri v. Signature Bank of Ark. , 2013 Ark. App. 174, at 5, 2013 WL 1007395.
Because we affirm on this point, we find it unnecessary to address Tuccillo's alternative argument that the circuit court erred in finding he was estopped from denying that he personally guaranteed Anchor's debts. | [
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BART F. VIRDEN, Judge
Victor B. Williams, M.D., appeals the order of the Pulaski County Circuit Court regarding his child support and visitation dispute with Tiffany Lofton. Williams presents five points on appeal: (1) the circuit court erred by not finding that a material change in circumstances occurred; (2) the circuit court erred in finding him in contempt of court for failing to provide medical insurance for their daughter and in awarding Lofton resulting health insurance costs she incurred; (3) the circuit court erred in awarding attorney's fees; (4) the circuit court erred in its determination regarding visitation; and (5) the circuit court erred in denying Williams's request to allow money placed into an educational trust to be counted in lieu of a portion of his child-support obligation. We reverse and remand the first point on appeal for the circuit court to enter an order in compliance with Administrative Order No. 10, and because the circuit court's determination of attorney's fees may be affected by its decision regarding child support, we remand that issue as well. We affirm the circuit court's determination that Williams was in contempt of court for disregarding the court's previous order to provide VW's health insurance, and we affirm the court's award of related costs. We affirm the circuit court's decision regarding visitation, and we affirm its denial of Williams's request to contribute to VW's educational trust fund in lieu of a portion of his child-support obligation.
I. Relevant Facts
In October 2006, the Pulaski County Circuit Court entered an order adjudicating Williams as the father of VW. Williams was awarded visitation four hours every other Sunday, and he was ordered to pay $2,400 in child support each month. The circuit court directed Williams to maintain a $500,000 life insurance policy on VW naming VW as the beneficiary, to maintain health insurance for VW, and to pay all healthcare and dental costs not covered by insurance.
On May 23, 2014, Williams filed an amended petition to modify support based on his assertion that his income had decreased by more than 20 percent due to the loss of his medical license and his resulting unemployment. It was also that month that Williams began paying $500 a month for child support instead of the court ordered $2,400 per month. Lofton filed a timely response; however, no action was taken by the court until two years later. On June 7, 2016, Lofton filed a motion to show cause requesting that Williams be held in contempt of court for unilaterally reducing his child support payment to $500 a month since May 2014, for failing to maintain life insurance, and for failing to maintain health and dental insurance for VW from January 1, 2012 to August 15, 2015. On July 5, 2016, Williams filed a second amended petition to modify child support reiterating that a material change of circumstances occurred due to the loss of his medical license in 2014, which led to the reduction in his income. Williams contended that he had been able to pay only $500 a month in support since May 2014. Williams described "ongoing issues" regarding the conditional reinstatement of his license and the difficulty of being admitted into the insurance networks due to his licensure issues. Williams requested that he be relieved of his obligation to maintain a life insurance policy. Williams disputed that he had not provided health insurance for VW.
On December 12, 2016, a hearing was held. At the hearing, Williams acknowledged that in 2006 he was ordered to pay $2,400 a month in child support, and he testified that he did so until May 2014, when he reduced his monthly payment to $500. Williams contended that his decision to reduce his child support payment was based on the loss of his medical license in April 2014 and the resulting reduction in his income. Williams offered testimony regarding the events that led to the loss of his medical license, namely that a peer review led to four complaints against him. Williams stated that his attorney failed to inform him of a related hearing before the medical board, and when he missed the hearing, his license was revoked from April 2014 to November 2015. In October 2015, Williams and the medical board reached an agreement that was entered in the circuit court in which his license was reinstated, but also setting forth that Williams was required to have a proctor oversee his work. Williams testified that since his reinstatement he had encountered difficulty finding insurance networks willing to enroll him, which has negatively affected his income because he is an out-of-network provider and patients pay more for his services. Williams also asserted that he did not agree to having a proctor oversee his work and that he disputed that aspect of the agreed order. Williams stated that he did not use a proctor and that one was not required by his current employer, North Metro Medical Center, where he works as an on-call surgeon.
Williams offered testimony regarding his income and his debt obligations. He stated that since April 2014, he had borrowed money from friends, withdrawn money from his retirement accounts, and drawn on his savings. At the hearing, he presented his 2014 and 2015 income tax returns, and he stated that the 2014 return showed that he earned around $109,000 from wages, royalties, and rental payments. Williams stated that from 2006 to April 2014, his income was around $192,000 "for child support purposes." Williams testified that his 2015 income tax report showed that he lost $51,585 that year in income. Williams explained that during the time his license was revoked, he kept his business (Surgical Associates) open because he believed that his license would be quickly reinstated. Williams testified that he paid from $6,500 to $7,000 a month in rent, and that he did not own the building. Williams then clarified that V & W Properties owned the building, and he and one other person owned V & W Properties.
He explained that he was not able to pay the full year of rent and taxes in 2015, which accounted for the $51,585 in loss of income for that year. Williams testified that his 2015 income tax report showed that he had drawn $174,750 from his IRA. Williams testified that in 2016 he withdrew $165,000 from his IRA, that his total income was $167,895, and that he paid $93,675 to Surgical Associates. Williams explained that as of September 2016, he had begun earning income again as an on-call surgeon.
On cross-examination, Williams testified that he had not missed any payments in service to any of his debts, though at times he made late payments. Williams explained that he had overpaid $2,500 on a credit card to make room on the card because it had been at its maximum. Williams addressed his monthly gambling losses averaging $500 to $600. Williams stated that he posted bets for a friend who was in poor health and that while he was posting for his friend, he posted bets for himself as well. Williams admitted that his bank records showed gambling expenses for several months after his friend died.
Williams requested that the court set aside a portion of the child support to go into an educational trust. Williams testified that he did not have any confidence Lofton would pay for VW's college education because he had paid over $260,000 in child support over twelve years, and she had not diverted a portion of those payments to a college fund. Williams stated that he had placed $3,000 in a college fund for VW.
Williams testified that he had maintained health insurance for VW, and he presented a letter from his insurance provider, QualChoice, showing that VW had been covered since January 1, 2013. Williams admitted he had not given the insurance card to Lofton. Williams clarified that he had maintained a life insurance policy for VW as he had been ordered to do and that the policy had never lapsed.
Williams expressed to the court his desire to have a close relationship with VW, and he requested standard visitation. He stated that VW had been to his house once in December, that he had not exercised visitation in November, and that he was not sure whether she had been to his home in October. He explained that Lofton and he communicated by text, though it was difficult at times, and that once there was a gap of five or six weeks when Lofton did not respond to his texts regarding visitation. Williams stated that he wanted to be apprised of VW's school work as well, and he admitted that he had not gone to have lunch with VW at her school since his period of unemployment began, though he had attended school programs. Williams testified that he had not attended any tennis tournaments since she had begun playing four years before, though he blamed this on not being told when the tournaments were being held. Williams admitted that he had previously stated that he would not take VW to her extracurricular activities if they occurred during his visitation because he wanted to spend time with her. He clarified that he had misunderstood the question and that he would take her to her activities in the future.
Lofton testified that VW had visitation with Williams about every six to eight weeks and that she had spent the night at his house twice since she was born. Lofton explained that VW is uncomfortable at her father's house, that she sees visitation as "punitive," and that Williams's sporadic visitation was disruptive. Lofton did not believe that Williams tried to make VW feel at home when she was there, and she stated that he did not take her to extracurricular activities if they took place during his visitation. Lofton agreed that she did not return his texts toward the end of her high-risk pregnancy and after the birth of the twins, which involved several weeks in the NICU. She explained that she was not intentionally ignoring him. Lofton noted that during his time of unemployment, Williams did not go to VW's school to see her or attend tennis tournaments, and she explained that she had given the school Williams's email address and he should be receiving updates on school functions. Lofton requested that the court grant Williams visitation in a "step-wise" manner-as he exercised visitation consistently, he would be given more visitation.
Lofton testified that she incurred health insurance expenses for VW because in the summer or fall of 2011 Williams informed her that it was too expensive to carry VW, and he was dropping her from his insurance. Lofton stated that she never received an insurance card from Williams, that they never talked about the subject again, and she never sent him a bill for any medical expenses that VW incurred. She explained that she had spent around $5,000 in increased insurance costs since that time. Regarding life insurance, Lofton testified that she did not recall whether Williams was ordered to carry one or if she was the beneficiary of the policy.
The circuit court entered an order on September 1, 2017, in which it denied Williams's request for modification of child support, visitation, and insurance requirements. The circuit court found that Williams unilaterally decreased his child support payment from $2,400 per month, to $500 per month and found that it did not consider his explanation for this reduction-that his medical license had been suspended by the State Medical Board due to his failure to attend a hearing "and for other reasons not fully explained"-sufficient to justify his actions. The circuit court found that "Defendant never proved by a preponderance of the evidence that his loss of license was through no fault of his own." The circuit court found that Williams had been able to pay all his normal debt as well as gamble during this period of suspended license; thus, the court reasoned that Williams had been able to pay his child-support obligation during this time as well.
The circuit court found that Williams never suffered an economic loss due to the suspension of his license, and he reduced his child support because he did not want to exercise visitation with VW. The circuit court also found that Williams "demonstrated an ability to earn net income such that his child-support obligation is and should remain $2,400 per month. Defendant's loss of income, if any, is due to his own actions, inactions or for reasons that were never adequately explained to the court."
The circuit court determined that Williams was in contempt for failing to provide medical insurance for VW and for failing to pay child support in the amount ordered. The court ordered Williams to reimburse Lofton $5,764.88 for premiums she had paid since 2012 and it found that Williams owed Lofton $70,300 in child support. The circuit court rejected Williams's suggestion that the circuit court allow him to offset the amount of child support he owed by the amount he placed in an educational trust and paid toward a life insurance policy. The circuit court also modified visitation, though it did not grant Williams's request for standard visitation to begin immediately. Instead, the circuit court ordered that Williams have visitation with VW for four hours every first and third Sunday for four months, and if he exercised visitation regularly during that time, the court ordered that visitation would be expanded to every first and third Saturday beginning at 6:00 p.m. and ending on Sunday at 6:00 p.m. The circuit court found that visitation would be expanded to standard visitation if Williams complied with the order. Williams was also ordered to observe VW's activity schedule. The circuit court ordered that Williams's two weeks of summer visitation would begin in 2018, and he was ordered to communicate with Lofton about the desired two-week period by April 15. Lofton was allowed to maintain "holiday traditions," but the circuit court ordered her to make VW available for a portion of the holidays as she had done in the past. Lofton was awarded $6,600 in attorney's fees. Williams filed a timely notice of appeal.
II. Issues on Appeal
A. Child-Support Obligation
Williams contends on appeal that the circuit court erred by not finding that he proved a material change in circumstances occurred. Specifically, he asserts that his testimony regarding the loss and reinstatement of his medical license and the tax returns he presented to the court conclusively show that he suffered a significant loss of income; thus, he contends that the circuit court erred in determining that a material change of circumstances did not occur. Williams also asserts that the circuit court's order does not comply with Administrative Order No. 10 because the circuit court failed to determine Williams's income, failed to refer to the amount of support required under the guidelines, and failed to recite whether the circuit court deviated from the Family Support Chart. We agree with Williams's assertion that the circuit court did not comply with the requirements of Administrative Order No. 10, and we also remand for the circuit court to make a clear finding of whether a material change of circumstances occurred.
The appellate courts review child-support cases de novo on the record. Chitwood v. Chitwood , 2014 Ark. 182, 433 S.W.3d 245. Under our standard of review, we do not reverse a finding of fact by the circuit court unless it is clearly erroneous. Id. We give due deference to the court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony; however, we give no deference to a circuit court's conclusion of law. Id.
We address Williams's two issues related to child support in reverse order. In Kirby v. Semeyn , 2017 Ark. App. 556, at 8-9, 531 S.W.3d 462, 468, our court recently held that "Administrative Order No. 10 requires child-support orders to contain the court's determination of the payor's income, recite the amount of support required under the guidelines, and recite whether the court deviated from the chart." In the instant case, the circuit court stated that
[d]efendant has demonstrated an ability to earn net income such that his child support-obligation is and should remain $2400 per month. Defendant's loss of income, if any, is due to his own actions, inactions, or for other reasons that were never adequately explained to the court.
In neither the circuit court's original 2006 order nor in the 2017 order did it determine Williams's income, refer to the family-support-chart guidelines, or recite whether the amount of support deviated from the chart. The order is facially deficient for these reasons, and we reverse and remand for the circuit court to enter an order that complies with Administrative Order No. 10.
We now turn to Williams's assertion that the circuit court found that no material change in circumstances occurred. We disagree that the circuit court made a clear finding regarding whether a material change occurred, and we remand for the court to do so.
A party seeking modification of a child-support obligation has the burden of showing a material change of circumstances sufficient to warrant the modification. Baber v. Baber , 2011 Ark. 40, 378 S.W.3d 699. Changed circumstances warranting an adjustment may include remarriage of the parties, a minor reaching majority, relocation, change in custody, debts of the parties, ability to meet current and future obligations, and change in the income and financial conditions of the parties. See Hall v. Hall , 2013 Ark. 330, 429 S.W.3d 219. Moreover, under Arkansas Code Annotated section 9-14-107(a)(1) (Repl. 2015), a relatively minor change in the payor's income can constitute a material change in circumstances. The statute sets forth that a change in gross income of the payor in an amount equal to or more than 20 percent or more than one hundred dollars per month shall constitute a material change of circumstances sufficient to petition the court for modification of child support according to the family support chart after appropriate deductions. Id. When a circuit court considers the issue of whether there has been a material change in circumstances, it considers the facts that have changed or were not known by the court at the time it entered the previous order. Troutman v. Troutman , 2017 Ark. 139, 516 S.W.3d 733.
As recited above, Williams offered testimony that included his description of his reduced ability to work since he lost his medical license, the effect of conditional reinstatement of his license, and his need to borrow money from friends and to draw money from his retirement fund. Williams also testified that during this time he had paid more than the minimum due for some debt, that he had been able to service all debts he had before the loss of his license, and he had gambling losses around $500 to $600 a month. Moreover, Lofton asserts in her brief that in a deposition, Williams admitted paying V & W Properties up to $15,000 a month for rent when the mortgage was only $6,900 a month. Williams also presented his tax returns for 2014, 2015, and 2016 showing his yearly income before and after he lost his license.
As we stated above, the circuit court found that he "never showed any economic loss as a result of his license suspension" and that "Defendant's loss of income, if any, is due to his own actions, inactions, or for other reasons that were never adequately explained to the court." It simply is not clear from the order whether the circuit court found that a material change in circumstances occurred. In Johnson v. Young , 2017 Ark. App. 132, 515 S.W.3d 159, a similar issue was presented for our review. In Johnson , appellant had filed a request in the circuit court to increase her ex-husband's child support payments based on a material change in circumstances. As in the instant case, there was extensive testimony and evidence presented regarding appellee's income. The circuit court denied her request for modification of support without making any findings or giving any explanation of its decision. Our court remanded the issue to the circuit court and held that it should have made a clear finding of whether a material change in circumstances occurred. Likewise, we remand to the circuit court for a determination of whether a material change of circumstances occurred.
As for the issue of attorney's fees, this issue must also be remanded to the circuit court because it is potentially related to the outcome of the child support issue. See Ark. Code Ann. § 9-14-233(b) ; Mills v. Mills , 2009 Ark. App. 175, 315 S.W.3d 707 (court must award attorney's fees at 10 percent of the judgment of arrears or any other reasonable amount).
B. Contempt
Lofton asserted to the circuit court that Williams should be held in contempt of court for violating the terms of the 2006 paternity order, and the circuit court agreed with her, finding that Williams was in contempt for failing to provide medical insurance for VW. Williams argues that the circuit court erroneously held him in contempt for failing to pay health insurance premiums and by awarding Lofton the associated costs. His argument is not well-taken, and we affirm. The standard of review for a finding of civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. Burrow v. J.T. White Hardware & Lumber Co. , 2018 Ark. App. 212, 547 S.W.3d 500.
Our constitution and caselaw make it clear that the courts of this state have inherent power to punish a contemnor for contempt committed in the presence of the court or in disobedience of process. Ark. Const. art. 7, § 26. See Carle v. Burnett , 311 Ark. 477, 845 S.W.2d 7 (1993). This inherent power goes beyond the statutory authority provided by section 16-10-108. There is no question that willful disobedience of a valid order of a court is contemptuous behavior. Ark. Code Ann. § 16-10-108(a)(3) (Repl. 1999). Contempt may be established when the offending party willfully disobeyed a valid order of a court. Kilman v. Kennard , 2011 Ark. App. 454, at 7, 384 S.W.3d 647, 651-52. Before one can be held in contempt for violating the court's order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. Id.
The 2006 order for support specifically sets forth that Williams is to maintain health insurance for VW and that Williams also agreed to be responsible for all medical costs not covered by insurance. Williams presented evidence that he maintained health insurance for VW. Indeed, a letter from QualChoice shows that he had carried insurance for VW since 2013; however, Lofton testified that in the summer of 2011 Williams told her that he was dropping VW's insurance because it was too expensive, which forced Lofton to add VW to her insurance at a cost of over $5,000 from January 2012 to the date of the hearing. Lofton explained that Williams refused her request to continue to carry VW's health insurance until the open enrollment period when she could add VW to her insurance for an additional $150 a month. She testified that Williams never provided her with an insurance card, and after the conversation in 2011, the subject was never discussed. Williams did not refute Lofton's statement that in 2011 he told her that he was not going to maintain insurance, and he agreed that he had not provided Lofton with an insurance card or paid any co-payments or any other medical costs since that time; thus, the circuit court did not err in holding Williams in contempt for violating the terms of the 2006 order to provide health insurance for VW or in ordering that Williams reimburse Lofton $5,764.88. On this point, we affirm.
C. Visitation
Williams contends that the circuit court erred in ordering visitation as it did. Essentially, Williams argues on appeal that his testimony that Lofton interfered with his relationship with VW should have been given more weight by the court. We disagree and affirm. In the 2006 order, the circuit court ordered that Williams's visitation with VW was to take place for four hours every other Sunday. The circuit court modified the original order of visitation and determined that Williams would have the same four-hour visitation with VW every first and third Sunday for four months; however, if Williams exercised visitation regularly during that time, visitation would be expanded to every first and third Saturday beginning at 6:00 p.m. and ending at 6:00 p.m. Sunday. The circuit court ordered that if Williams continued to exercise visitation regularly, he would be given standard visitation including two weeks of summer visitation beginning in 2018.
This court has stated the best interest of the child is the polestar for making judicial determinations concerning custody and visitation. Buckley v. Buckley , 73 Ark. App. 410, 416, 43 S.W.3d 212, 216 (2001). A circuit court maintains continuing jurisdiction over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or facts not known to it at the time of the initial order. Baber , 2011 Ark. 40, 378 S.W.3d 699. Fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id. When the best interests of the child are at stake, the circuit court should look into the particular circumstances of each case and act as the welfare of the child appears to require. Id. We know of no type of case wherein the personal observations of the court mean more than in a child-custody case. Wilson v. Wilson , 2016 Ark. App. 191, 487 S.W.3d 420.
The parties offered conflicting testimony regarding VW's visitation with Williams. Williams described a warm relationship with his daughter, centered on church, and he testified that they played basketball together. He testified that visitation was hampered by Lofton's refusal to respond to texts or to make him aware of VW's sports and school events. Lofton testified that Williams inconsistently exercised his visitation, that he did little to make VW feel comfortable at his home, and that VW had spent the night at Williams's house twice in twelve years. Lofton explained that Williams failed to take VW to extracurricular activities when she was with him and that he made no attempt to see VW on her birthday. We defer to the circuit court on credibility determinations, Ford v. Ford , 347 Ark. 485, 65 S.W.3d 432 (2002), and in light of our deference to the circuit court's ability to weigh the credibility of the witnesses, we hold that the circuit court did not err in its visitation determination. The circuit court thoughtfully addressed the visitation issue to fulfill VW's best interest and that also grants Williams the standard visitation he requested as he exercises his right consistently. We find no error in the circuit court's visitation order, and we affirm.
D. Educational Trust
Williams argues that the circuit court erred by denying his request to set up an educational trust in lieu of a portion of his child-support payments. We disagree and affirm.
Child support is not to provide for the accumulation of capital by children but is to provide for their reasonable needs. Smith v. Smith , 341 Ark. 590, 596, 19 S.W.3d 590, 594-95 (2000). Our supreme court has held that the statute and the guidelines do not support the argument that the circuit court has the authority to designate portions of the child-support award for an educational trust. Id. at 595, 19 S.W.3d 590 ; see McCrillis v. Hicks , 2017 Ark. App. 221, at 19, 518 S.W.3d 734, 746 (reversing the circuit court's decision to allow Hicks to pay into an educational trust in lieu of child support.) The circuit court correctly denied Williams's request to contribute to an educational trust in lieu of a portion of his child-support obligation.
Reversed in part; remanded in part; affirmed in part.
Abramson and Hixson, JJ., agree.
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N. MARK KLAPPENBACH, Judge
Terry Presley applied for a conditional-use permit to operate a wedding and event center on property he owns in Washington County. The permit was denied by the Washington County Quorum Court. Presley appealed to the Washington County Circuit Court, which granted summary judgment to Presley. Washington County, its quorum court, and its county judge now appeal. We affirm.
Presley filed his application for a conditional-use permit in August 2016 and thereafter worked with the Washington County Planning Office to meet the requirements for such a permit as outlined in the Washington County Code. Although the property was zoned for residential and agricultural uses, the Washington County Planning Board and Zoning Board of Adjustments (the board) may authorize other uses upon a finding of the following:
(1) That a written application has been filed with the Planning Office and the appropriate fee has been paid.
(2) That the applicant has provided proof that each property owner as set out in section 11-204 has been notified by return receipt mail.
(3) That adequate utilities, roads, drainage and other public services are available and adequate or will be made available and adequate if the use is granted.
(4) That the proposed use is compatible with the surrounding area.
(5) That the establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare.
(6) That the conditional use will not be injurious to the use and enjoyment of other property in the surrounding area for the purposes already permitted, nor substantially diminish and impair property values within the surrounding area.
(7) That the establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding area for uses permitted in the zone.
Washington County, Ark., Code § 11-200(a) (2017). Although some neighbors opposed the permit, the board eventually approved it with conditions in November 2016. The neighbors then appealed to the quorum court.
At the quorum court meeting, Washington County planner Nathan Crouch spoke about the project and concerns that had been addressed with different county officials. Crouch said that the planning staff recommended approval of the permit with conditions. Following Crouch's presentation, Presley and his sister, who planned to operate the event center with him, answered questions from the quorum court members. Neighbors then spoke in opposition to the permit. Finally, members of the court explained their decisions, cited factors from the code, and voted 11-1 to deny the permit.
Presley appealed to the Washington County Circuit Court as allowed by Arkansas Code Annotated section 14-17-211 (Repl. 2013). He subsequently moved for summary judgment, arguing that the required factors had been proved and there was no genuine issue of material fact. He attached the affidavits of both Crouch and Juliet Richey, the county's director of planning through November 2016. Appellants responded to the motion, arguing that the quorum court, not the planning staff or the board, had the ultimate authority to approve or deny a permit request. The circuit court granted summary judgment to Presley upon finding that the evidence was uncontroverted and that appellants had failed to meet proof with proof. The court found that the planning staff had determined that the application was compliant with the relevant criteria and that their affidavits were unrefuted. The court directed the county to issue the permit to Presley.
The standard of review in reviewing a grant of summary judgment is well established:
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts.
Benton Cty. v. Overland Dev. Co. , 371 Ark. 559, 564, 268 S.W.3d 885, 888-89 (2007) (quoting Heinemann v. Hallum , 365 Ark. 600, 603-04, 232 S.W.3d 420, 422-23 (2006) (citations omitted) ).
Appellants argue that genuine issues of material fact exist based on the "highly controverted" evidence. They point to the numerous concerns voiced by neighbors who opposed the permit and the code criteria cited by quorum court members who voted to deny the permit. Appellants contend that it was unnecessary to file counteraffidavits in response to the motion for summary judgment because the pleadings filed with the circuit court included the entire record of the proceedings before the planning board and the quorum court, which plainly reveals genuine issues of fact regarding whether the code criteria were met. Appellants also claim that Presley's offered proof was inconsistent because an opinion regarding compatibility contained in Crouch's affidavit was absent from Richey's affidavit.
Appellants correctly note that even when a party fails to respond to a motion for summary judgment or fails to present proof showing a genuine issue of material fact, summary judgment may not be warranted. When the proof supporting a motion for summary judgment is insufficient, there is no duty on the part of the opposing party to meet proof with proof. Inge v. Walker , 70 Ark. App. 114, 15 S.W.3d 348 (2000). In Inge , we held that the motion for summary judgment itself presented a material question of fact because a statement in the appellee's answer to an interrogatory attached as an exhibit to his motion was contradicted by a statement in his answer to the complaint. In Buie v. Certain Underwriters at Lloyds of London , 79 Ark. App. 344, 87 S.W.3d 832 (2002), excerpts from depositions attached to the moving party's motion for summary judgment presented irreconcilable factual circumstances and demonstrated a material question of fact.
Appellants contend that, as in Inge and Buie , Presley's motion for summary judgment itself, along with the other pleadings on file, presented genuine questions of material fact. The cases relied on by appellants, however, are distinguishable because they involved proof properly before the circuit court for consideration in summary-judgment proceedings. Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law on the issues specifically set forth in the motion." Ark. R. Civ. P. 56(c)(2). "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Ark. R. Civ. P. 56(e). Here, neither the concerns voiced by the neighbors in writing and at the quorum court meeting nor the members' stated reasons for voting to deny the permit were submitted under oath or in the form of an affidavit. See Am. Gamebird Research Educ. & Dev. Found., Inc. v. Burton , 2017 Ark. App. 297, 521 S.W.3d 176 (reversing summary judgment because circuit court improperly considered letter that was not under oath). While Rule 56 also allows consideration of the pleadings, appellants have not pointed to any statement contained in a pleading, as defined by Rule 7(a) of the Arkansas Rules of Civil Procedure.
Presley presented proof in the form of Crouch's affidavit that all the criteria had been met for the conditional-use permit to be approved. Appellants presented no proof to rebut this proof in their response to the motion for summary judgment, and they point to no other proof that was properly before the circuit court for consideration pursuant to Rule 56. We are not persuaded that the fact that statements made in Crouch's affidavit are absent from Richey's affidavit makes Presley's proof contradictory. For these reasons, we affirm the order of the circuit court.
Affirmed.
Harrison and Glover, JJ., agree. | [
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RHONDA K. WOOD, Associate Justice
Attorney Jonathan Streit appeals the circuit court's contempt finding and $ 100 fine. Streit argues that the evidence was insufficient to support a finding of contempt. We affirm.
In May 2018, Streit appeared before the circuit court on a petition for permanent guardianship over the person and estate of Betty Bevill. Evidently in the months preceding the hearing, Streit was involved in a separate, unrelated appeal involving the same circuit court. See In re Estate of Edens , 2018 Ark. App. 226, 548 S.W.3d 179. In Estate of Edens , Streit represented the client of another attorney, Simpson, on an appeal of a denial of a recusal motion. In that case, Simpson had argued that the circuit court was biased against him and should recuse from all cases in which Simpson was associated. The circuit court denied the motion to recuse. Streit filed the appeal for Simpson's client, and the court of appeals reversed. Id. The mandate in Estate of Edens issued in April 2018, and approximately one month later, Streit appeared before the same circuit court in this case.
Streit argues that because he appealed and successfully reversed the circuit court in Estate of Edens , that the circuit court took issue with him at the guardianship hearing in the instant matter. Streit alleges that at the hearing, the circuit court immediately noted several deficiencies in the case file, including the lack of necessary professional medical evidence. The circuit court was unwilling to allow the matter to proceed without compliance with the statutory requirements. At that point the following exchange occurred.
MR. STREIT : So just to be clear, if there is an individual who recognizes and has been diagnosed with dementia and wishes for a guardianship to be placed over her by her daughter -
THE COURT : Sir, you don't need to be clear. I told you the answer.
MR. STREIT : Judge - I understand that, Judge. I'm going to make my record.
THE COURT : Why don't you -
MR. STREIT : I'm going to make my record.
THE COURT : I tell you what. Why don't you go get the book and you can read it for yourself?
MR. STREIT : I'm going to make my record because, Judge -
THE COURT : I don't care if you make your record. You can stand here -
MR. STREIT : Judge, Judge, Judge -
THE COURT : Sir, -
MR. STREIT : You and I -
THE COURT : You can make your record.
MR. STREIT : You and I -
THE COURT : You can make your record, sir -
MR. STREIT : You and I both know what this is about.
THE COURT : We do? I don't know what it's about.
MR. STREIT : This is about an appeal on which you were reversed. That's what this is about.
THE COURT : Oh, is that what it's about?
MR. STREIT : Yes.
THE COURT : No, sir. Five minute recess.
When the court returned from recess, it re-called Streit's case and recited the portion of the probate code relating to medical evaluations. After explaining that it would not proceed without a written medical evaluation in the case file, the circuit court began reading aloud the Arkansas statute on contempt. Thereafter, it informed Streit,
[A]s I recall, after I had informed you of what I thought were deficiencies, you said to me, we all know what this is about.... My response was, no I don't know what it was about. And at that point, you accused me of having motivation to call these requirements to your attention and to enforce the requirements, at least as to the requirement of having the written report from a doctor, and said I was doing this for something that was not related to this and was in fact I believe motivated by prejudice towards you. Am I correct?
Streit responded affirmatively. The circuit court asked Streit, "Do you wish to take that position?" To which Streit responded, "I do believe that, yes." As a result, the circuit court found Streit in contempt of court and assessed a fine of $ 100.
Streit argues that the evidence is insufficient to sustain a contempt finding. Arkansas Code Annotated section 16-10-108(c) (Repl. 2010) controls the court's power to punish for criminal contempt. A contemptuous act includes the "disorderly, contemptuous, or insolent behavior committed during the court's sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority." Ark. Code Ann. § 16-10-108(a)(1). If committed in the immediate view and presence of the court, contempt may be punished summarily. Ark. Code Ann. § 16-10-108(c). Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. McCullough v. State , 353 Ark. 362, 108 S.W.3d 582 (2003). The attorney's oath similarly provides, "I will maintain the respect and courtesy due to courts of justice, judicial officers, and those who assist them." In criminal-contempt cases, we view the record in the light most favorable to the circuit court's decision and sustain that decision if it is supported by substantial evidence and reasonable inferences. Id.
Here, viewing the record in the light most favorable to the circuit court's decision, substantial evidence supports the decision to hold Streit in contempt. When the circuit court informed Streit that it would not proceed with the hearing because of the lack of a written medical record, Streit immediately questioned the judge's integrity in open court. Streit persisted with this theory even after the circuit court explained its reasoning for the decision. The record reflects Streit interrupted the circuit court on at least three occasions during the tense exchange. The circuit court allowed Streit an opportunity to reconsider his accusation, but Streit was unwilling. We emphasize that a court's contempt power should be used cautiously and sparingly; however, because we find substantial evidence supports the decision that Streit's actions displayed a lack of regard for the court's integrity and demonstrated disrespect, we affirm.
Affirmed.
Baker and Hart, JJ., dissent.
This court has typically reviewed attorney contempt cases pursuant to Arkansas Supreme Court Rule 1-2(a)(5), which states that the Arkansas Supreme Court has jurisdiction over the "discipline of attorneys-at-law." See Bloodman v. State , 2010 Ark. 169, at 1, 370 S.W.3d 174, 175. We now conclude that attorney-contempt cases do not fall under the meaning of Rule 1-2(a)(5), and prospectively, we direct the clerk of the court to assign them to the court of appeals. | [
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KENNETH S. HIXSON, Judge
Appellant Steven Blackwood appeals after the Washington County Circuit Court filed an order terminating his parental rights to B.H. (DOB 11-20-2016). Appellant argues on appeal that the trial court erred in terminating his parental rights because the Arkansas Department of Human Services (DHS) failed to meet its burden of proof and comply with court orders. We affirm.
I. Facts
On January 23, 2017, DHS filed a petition for ex parte emergency custody and dependency-neglect of B.H. In the affidavit attached to the petition, DHS stated that B.H. was removed from his mother's care and custody after it was reported that both Lindsay and B.H. tested positive for opiates, amphetamines, and methamphetamine at B.H.'s birth. The trial court granted the petition, finding that probable cause existed for the removal. The trial court found that there was probable cause to believe that B.H. was dependent-neglected and that it was contrary to his welfare to remain with Lindsay.
Subsequently, a probable-cause hearing was held on January 24, 2017, and the trial court filed a probable-cause order. The trial court found that it was contrary to B.H.'s welfare for him to be returned to his mother's custody. Appellant was referenced in the order as B.H.'s putative father. The trial court noted that Lindsay had not demonstrated stability or sobriety, that B.H. had to remain in the hospital for two months due to his undergoing withdrawal from illegal drugs, and that appellant was incarcerated. In relevant part, appellant was ordered to cooperate with DHS, refrain from using illegal drugs or alcohol, obtain and maintain stable housing and employment that was adequate for him and B.H., demonstrate an ability to protect B.H. and keep him safe from harm, take the appropriate steps to establish paternity, and follow the case plan and court orders.
In the March 22, 2017 adjudication and disposition order, B.H. was found to be dependent-neglected as a result of neglect and parental unfitness. The trial court specifically found that appellant was B.H.'s biological father after appellant had signed an acknowledgment of paternity. The order additionally noted that appellant was incarcerated. An order of paternity was subsequently filed on June 30, 2017.
A review hearing was also held on June 30. The trial court found that B.H. had been diagnosed with fetal alcohol syndrome and had special needs, including the need for intensive supervision and multiple therapies. The trial court further found that
Steven Blackwood has not complied with any of the court orders and the case plan. Specifically, Steven Blackwood remains incarcerated. He was on parole for Manufacturing Methamphetamine and received a Parole Violation for leaving the scene of a personal injury accident. He expects to be out of prison in 6-9 months. He has not maintained contact with DHS; has not demonstrated sobriety; has not demonstrated stability in housing and employment; has not demonstrated that he can protect B.H. and keep him safe from harm. He is in noncompliance.
He has made no progress towards alleviating or mitigating the causes of the juvenile's removal from the home and completing the court orders and requirements of the case plan.
In addition to its previous orders, the trial court ordered appellant to resolve all criminal charges and follow the terms of his probation and/or parole and to participate in the classes available to him in prison. The trial court further declined to place B.H. with his paternal grandmother, Mary Ann Heath. It explained that it had concerns with placing B.H. in her care because B.H.'s stepmother, Steffanie Blackwood, lived in the home and has a felony record; B.H. needed to have continued medical coverage; it was in B.H.'s interest to remain in his current foster home due to his serious special medical needs; and there were three other children already living in the grandmother's home who also had special medical needs. However, the trial court ordered DHS to conduct a home study and did not require Steffanie to move out before the home study was conducted.
After the December 13, 2017 permanency-planning hearing, the trial court changed the goal to adoption and authorized DHS to file a petition for termination of parental rights. The trial court found that neither parent was fit. Regarding appellant, the trial court found the following:
With respect to Father - it is Father's own actions that have caused him to go to prison six (6) times. Father cannot provide for [B.H.] or meet his needs due to Father's incarceration. The Court cannot place [B.H.] with Father today. Father will be incarcerated until at least August of 2018. Father has not made measurable, sustainable progress toward the goal of reunification. The Court notes that incarceration of a parent does not mean that their responsibility to their children stops. Father has a responsibility to provide for [B.H.], but is unable to do so because his choices and actions led to his being incarcerated. Father testified he was denied early parole and will not be released from prison until August 2018 - he is in prison now for a parole violation (his underlying charge is manufacturing of meth).
The trial court noted that it considered a home study on Mary Ann Heath (then Schlosser), but the trial court additionally ordered DHS to conduct a written adoptive home study.
DHS filed a petition for termination of parental rights on February 5, 2018. DHS alleged several grounds for termination under Arkansas Code Annotated section 9-27-341(b)(3)(B) (Supp. 2017) that were applicable to appellant, including the failure-to-remedy, failure-to-provide-material-support or maintain-meaningful-contact, subsequent-factors, criminal-sentence, and aggravated-circumstances grounds. A termination hearing was held on April 4, 2018.
At the termination hearing, the family-service worker assigned to the case, Whitney Muller, testified regarding the case history as outlined above. Muller stated that appellant had shown very minimal compliance throughout the case and had failed to comply with the case plan and court orders. Appellant would write her letters, and she responded with letters encouraging him to engage in services. Muller noted that appellant had been incarcerated throughout the case and that he has seen B.H. only one time in the courtroom. Muller recommended that the trial court authorize B.H.'s adoption after terminating appellant's parental rights. She explained that B.H. was doing well in his foster family's care and that the family had expressed its desire to adopt B.H.
On cross-examination, Muller testified that she had visited B.H.'s paternal grandmother's (Mary Ann Heath's) home once or twice and that she had conducted a home study, which was admitted into evidence. Although the home was appropriate, the home study was not approved because appellant's wife and B.H.'s stepmother, Steffanie Blackwood, was also living in the home. Steffanie is a convicted felon, and DHS would not approve placement into a home with a convicted felon. At one point, Mary Ann told Muller that Steffanie had moved out of the home; however, DHS found that statement to be untrue. Muller acknowledged that the trial court had ordered an adoptive home study after the last hearing, but Muller stated that she was not qualified to conduct an adoptive home study. Regardless, Muller explained that she did not need the adoptive home study in order to give her opinion and recommendation. She opined that it was in B.H.'s best interest to remain with his current foster family. She explained that B.H. requires special care and had bonded with his foster family. B.H. had not developed any relationship with either his father or paternal grandmother outside the courtroom. Further, Mary Ann had other children with special needs already living in her home, and Muller did not think that B.H. would receive the same level of care and attention that he receives in his foster parents' home.
Nirika Morris, an adoption specialist, testified that a contract provider was still in the process of conducting the adoptive home study that was ordered at the previous hearing. She explained that the process took time to complete depending on how long the background checks and references took to complete, which were out of DHS's control. In this case, the information was completed and referred to the contract provider on March 16, 2018, and the contract provider had forty-five days to complete the study. Morris testified that the adoptive home study had not been completed at that time.
Appellant testified that he desired to have B.H. placed in his mother's care until he was released from prison. He explained that he knew his mother would be able to take care of B.H. because she was already caring for three children with special needs. He admitted that he had been incarcerated on at least six or seven separate occasions, stemming in large part from his drug addiction. Appellant explained that he received a ten-year sentence in 1999 and served approximately twenty-three months in prison before being released. Thereafter, he violated his parole only sixty days after his release and served another fourteen months. Appellant further explained that he went back to prison approximately six weeks after that release. He had been convicted of theft by receiving and for "drug-related charges" (methamphetamine). According to appellant, his third stint in prison lasted two and a half years, and once he was released, he stayed out of prison until 2011 when he was charged with manufacturing methamphetamine. Appellant was sentenced to serve twenty years' imprisonment and was paroled in 2014 after serving twenty months. However, he violated his parole for leaving the scene of an accident involving serious injury or death, which led to his current incarceration during the pendency of this case. Appellant stated that the parole board had previously denied his parole request, but he was eligible to request parole again and could be released in August 2018 at the earliest. Appellant further admitted that unless he was granted parole, he could be imprisoned until 2023 under his current sentence.
Mary Ann Heath testified that she is B.H.'s paternal grandmother. During the pendency of the case, Mary Ann married Dave Schlosser. However, at the termination hearing, she testified that she had divorced Dave after they had a disagreement about whether physical discipline would be used against the minor children living in the home. Mary Ann testified that she would not allow physical discipline to be used. She stated that they had been married a total of six months and that they had dated for a year before their marriage. Mary Ann admitted that she was currently raising three children with special needs. She expressed her desire to have B.H. placed in her care because appellant wanted to be a part of his son's life. She stated, however, that she would follow the court's orders and would not allow appellant to see his son if that was the trial court's decision.
B.H.'s foster mother, Pam, testified that B.H. was doing well in her care despite all the complications after his birth. Pam explained that B.H. was in the hospital for two months after his birth and that the doctors had told her that he would have substantial developmental delays. B.H. has multiple therapies and is exceeding expectations. He is walking, using sign language, and has bonded with her. She feared that any abrupt change would be detrimental to him.
In the termination order, the trial court found by clear and convincing evidence that DHS had proved all the statutory grounds alleged. It further found that it was in B.H.'s best interest to terminate appellant's parental rights. It stated that it considered the likelihood that B.H. would be adopted and the potential harm to the health and safety of B.H. by returning him to appellant.
10. The Court finds the following to be true:
a. The Arkansas Department of Human Services has made reasonable efforts to provide services to the family and to finalize the permanency plan in the case. Specifically regarding Mr. Blackwood, the DHS caseworker, Whitney [Muller], has corresponded with him to keep him apprised of the case and how he can participate in it from prison.
....
j. Throughout the case, Steven Blackwood remained incarcerated. He is in the Arkansas Department of Correction. This is his sixth commitment to prison. He failed to establish a home that is safe and appropriate. He failed to demonstrate the ability to care for [B.H.] and support him financially. He did not complete any parenting classes.
k. During the case, neither parent showed an ability to support themselves, much less support the juvenile. Neither parent contributed financially to [B.H.'s] care in the last year.
....
m. Steven Blackwood's criminal record goes back to at least 1999. He has been to prison six times. He was sentenced to 72 months confinement in the Arkansas Department of Correction on May 12, 2017 for leaving the scene of an accident involving serious injury or death. He was on parole for a 240-month sentence for conspiracy to manufacture methamphetamines at the time of the new charge. These sentences are both longer than the time [B.H.] has been alive and are both significant periods of the child's life.
n. Based on the above findings, the Court finds that there is little likelihood of successful reunification with Lindsay Sherry and Steven Blackwood.
....
p. Steven Blackwood has little to no chance of being a significant part of [B.H.'s] life as he has repeatedly acted in ways that led him to be incarcerated. The Court also notes that the only contact between Steven Blackwood and [B.H.] has been a single viewing of the child in the courtroom. He has never been able to care for the child due to his incarceration.
q. The Court is specifically aware of the limitations [B.H.] will face in life based on the testimony and finds that he is still reasonably likely to be adopted as all those issues are being addressed in his therapies.
11. Pursuant to Ark. Code Ann. § 9-27-341, the Court grants the Petition of the Department of Human Services and hereby terminates all parental rights between Lindsay Sherry, Steven Blackwood and the juvenile.
This appeal followed.
II. Standard of Review
A trial court's order terminating parental rights must be based on findings proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark. Dep't of Health & Human Servs. , 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the trial court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). However, only one ground must be proved to support termination. Reid v. Ark. Dep't of Human Servs. , 2011 Ark. 187, 380 S.W.3d 918.
The intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3). Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Cobb v. Ark. Dep't of Human Servs. , 2017 Ark. App. 85, 512 S.W.3d 694. Moreover, a child's need for permanency and stability may override a parent's request for additional time to improve the parent's circumstances. Id. Finally, a parent's past behavior is often a good indicator of future behavior. Id.
III. Termination
Appellant generally argues on appeal that the trial court erred in terminating his parental rights because DHS failed to meet its burden of proof and comply with court orders. He argues that DHS failed to show by clear and convincing evidence that he is unfit and that termination of his parental rights was in the child's best interests. He analogizes this case to Cranford v. Arkansas Department of Human Services , 2011 Ark. App. 211, 378 S.W.3d 851, and states that the trial court should have placed B.H. with Mary Ann until "he could get out of prison and assume his responsibilities to the child." Appellant alleges that there was no evidence that he had ever harmed the child or that there was a threat he would do so in the future. He further alleges that "DHS did not comply with the court orders and do the adoptive placement home study even though they had plenty of time to do it." He explains that his mother has experience in taking care of children with special needs, that her home was appropriate, and that there "is simply no good reason why the minor child should not have been placed with the grandmother." Appellant contends that if the trial court had done so, he "could have gotten out of prison and continued his efforts toward reunification with the child." Therefore, he argued that termination of his parental rights was not in B.H.'s best interest.
Appellant does not specifically challenge the sufficiency of the evidence supporting the grounds for termination, nor does he specifically challenge the trial court's findings regarding adoptability. Thus, we need not consider those issues. Yarbrough v. Ark. Dep't of Human Servs. , 2016 Ark. App. 429, 501 S.W.3d 839. Nevertheless, subsection (b)(3) of Arkansas Code Annotated section 9-27-341 sets forth the grounds for terminating parental rights and includes the imprisonment ground, which states that "[t]he parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life." Ark. Code Ann. § 9-27-341(b)(3)(B)(vii). The prison sentence, not the potential release date, determines whether this statutory ground is satisfied. Brumley v. Ark. Dep't of Human Servs. , 2015 Ark. 356, 2015 WL 5895440. It was undisputed that appellant had been incarcerated since the birth of his son, and appellant even testified that unless he was granted parole, he could be imprisoned until 2023. Additionally, B.H.'s foster mother indicated that she wished to adopt B.H. Thus, we cannot say that the trial court's findings that appellant's sentence constituted a substantial portion of B.H.'s life and that B.H. was adoptable were clearly erroneous.
Appellant's remaining arguments are without merit. In assessing the potential-harm factor, the court is not required to find that actual harm would ensue if the child were returned to the parent nor to affirmatively identify a potential harm. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. The potential-harm analysis is to be conducted in broad terms. Id. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold. Id. Appellant's analogy to Cranford , supra , is misplaced. In Cranford , we did not agree that termination would necessarily provide greater stability in the child's life because the father had "demonstrated stability in housing and employment before his incarceration, and testified that he will be able to regain that stability after his release, which was anticipated to be only six weeks from the termination hearing." Id. at 10, 378 S.W.3d at 856. Those are not the facts of this case.
Here, regardless of whether the last adoptive home study was available, the fact remained that B.H. was placed in foster care-not the care of a relative. We have repeatedly distinguished and declined to follow Cranford in cases where either the child is not already in a permanent, stable placement or termination is in the best interest of the child. Elliott v. Ark. Dep't of Human Servs. , 2017 Ark. App. 672, 536 S.W.3d 642. Moreover, even if B.H. had been placed in Mary Ann's care, we have held that drug-related issues can support a court's finding of potential harm, even when a child is placed with a relative. Swangel v. Ark. Dep't of Human Servs. , 2018 Ark. App. 197, 547 S.W.3d 111 (citing White v. Ark. Dep't of Human Servs. , 2017 Ark. App. 529, at 6, 530 S.W.3d 402, 405 ).
The case at bar is more akin to Brumley and White . In Brumley , the father had been incarcerated for most of the child's life, had no relationship with the child, and lacked essential components of the case plan as a result of his continued incarceration. Our supreme court held that termination of parental rights was in the child's best interest where the evidence did not reflect any stability or reasonable hope for reunification. Id. Similarly, in White , the father had a series of drug charges dating back to 2009, and his charges and parole violations had led to chronic incarcerations, including his incarceration during the pendency of the dependency-neglect case.
We held that White's own poor choices had led to his arrests and demonstrated the potential harm to his child. Id. The same is true here. Appellant admitted that his drug addiction led to his chronic incarcerations; he had no relationship with his son due to his incarceration during the entire case; he failed to comply with the case plan; and he was ineligible to even seek parole until at least four months after the termination hearing. Clearly, the stability and reasonable hope for reunification found in Cranford is lacking in the facts of the instant case. Permanency is the objective of the termination procedure and cannot be lightly discounted. Brumley , supra . Thus, we conclude that this evidence of potential harm, combined with the child's adoptability, supports the trial court's ruling that termination of appellant's parental rights was in the child's best interest.
Affirmed.
Harrison and Brown, JJ., agree.
The trial court also terminated the parental rights of Lindsay Sherry, B.H.'s mother. However, she is not a party to this appeal. | [
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DAVID M. GLOVER, Judge
An administrative law judge (ALJ) found appellant Felecia Davenport was not entitled to temporary total-disability benefits (TTD) for the period from February 17, 2015, to a date to be determined. Specifically, the ALJ found appellee Wal-Mart Stores, Inc., (Wal-Mart) has at all times made suitable employment available to Davenport within her physical restrictions until such time Davenport left work and never returned, and Davenport failed to prove by a preponderance of the evidence her entitlement to TTD. The Workers'
Compensation Commission (Commission) affirmed and adopted the ALJ's decision. Davenport now appeals to this court, arguing (1) the Commission arbitrarily disregarded evidence and witness testimony and (2) the Commission's decision failed to provide a substantial basis for relief. We affirm the Commission's decision.
Davenport began working as an order filler at a Wal-Mart Distribution Center on October 15, 2014. This job involved labeling boxes of merchandise requested by Wal-Mart stores and placing the boxes on a conveyor belt, which required bending, stretching, lifting, twisting, going up steps, and reaching with her body and arms and/or a metal bar to pull items down. On November 14, 2014, Davenport suffered an admittedly compensable injury to her right thumb and shoulder while attempting to pull a box off a shelf. Davenport completed her shift that day but began to have shooting pain down her right arm that night. She reported she was experiencing pain and was seen by Dr. Shahid Shah of Sherwood Urgent Care on November 18, 2014, where she was diagnosed with a right-shoulder contusion and a sprained right thumb; x-rays of both her shoulder and thumb were negative for fractures or dislocations. A temporary alternative duty assignment (TAD) was completed detailing Davenport's restrictions and offering Davenport work doing label backing or detail cleaning; Davenport checked the box stating she accepted the TAD position offered to her and signed the TAD on November 19, 2014.
Davenport was seen by Dr. Waseem Shah of Sherwood Urgent Care on November 24, 2014, for a follow-up visit. He continued Davenport on light duty. However, on November 30, 2014, Dr. Kenneth Holder of Sherwood Urgent Care took Davenport off work until she could be evaluated for physical therapy. An MRI performed on December 4, 2014, indicated a small bursal-sided tear of the posterior fibers of the infraspinatus tendon.
Davenport began physical therapy on December 5, 2014. She was seen by Dr. Waseem Shah on December 8, 2014, for a follow-up exam; referred to an orthopedist due to her acute right-shoulder pain; and was given a prescription for hydrocodone-acetaminophen tablets. She was also seen the same day for complaints of left-shoulder pain.
A second TAD was generated on December 8, 2014, noting Dr. Shah had released Davenport for light duty in label backing with restrictions of no bending, stooping, or pulling of her shoulder or arms. Davenport marked that she accepted the TAD position and signed the document on December 13, 2014.
Davenport was seen at Sherwood Urgent Care for follow up on December 12, 2014. She was informed she probably would not be given a refill on her pain medication due to her failure to use it as directed. She also continued to complain of left-shoulder and upper-arm pain. She became upset when she was told she could not obtain more pain medication and that workers' compensation would not cover any left-shoulder injury. It was noted to obtain a referral to orthopedic-surgery consultation; when she was told she could not see an orthopedist that day, Davenport left the clinic.
Davenport received physical therapy on December 12 and 19, 2014. A third TAD was completed on December 20, 2014, stating Davenport's restrictions were no right-arm duty; Wal-Mart offered Davenport the jobs of label backing and detail cleaning, but Davenport did not accept or refuse the TAD, nor did she sign it. Davenport was seen by Dr. Waseem Shah on December 22, 2014, who noted she was still having right-shoulder pain with movement.
Davenport was seen by Dr. Kyle Blickenstaff on December 30, 2014, and his examination revealed no tenderness on palpation of the acromioclavicular joint of the right shoulder; no muscle atrophy of the shoulders; no swelling of the right shoulder; no crepitus on palpation of right shoulder; and normal active and passive motion of the right shoulder. However, right-shoulder pain was elicited on elevation through active abduction, elevation through forward flexion on passive abduction, and during a Neer impingement test of the right shoulder. Dr. Blickenstaff found Davenport to be fit for light-duty work with restrictions of no lifting overhead and no pushing and pulling or repetitive reaching with the right upper extremity.
Davenport failed to attend her physical-therapy appointments on December 29, 2014, and January 7 and 8, 2015. A fourth TAD was created on January 5, 2015, offering Davenport label-backing duties and detail cleaning. This TAD incorporated Dr. Blickenstaff's restrictions of modified light duty with no pushing, pulling, lifting more than five pounds, and no overhead reaching for 30 days. Davenport did not accept or refuse this TAD, and she did not sign the document.
Dr. William Rutledge saw Davenport on January 20, 2015, noting she was unable to tolerate limited duty due to pain and discomfort. His examination revealed Davenport's right shoulder was slightly lower than her left; she had pain with far abduction and with external rotation; and the right thumb had mild tenderness with forward flexion. His assessment was right-shoulder strain, neck sprain, and resolved sprain of right thumb; he noted Davenport was to be off work until seen by him again.
Davenport canceled her physical-therapy appointments for January 26 and February 2, 2015. She called the physical-therapy office on February 3, 2015, stating she wanted to wait until the next week because she was medicated and disoriented; however, she also failed to attend her February 9, 2015 appointment.
Davenport was seen by Dr. Rutledge again on February 11, 2015, who released her to attempt limited-duty work beginning February 17, 2015. A fifth TAD was completed on February 27, 2015, offering Davenport work performing label backing and detail cleaning. The right-shoulder restrictions provided by Dr. Rutledge were set forth in the TAD, which were no reaching above shoulder level, no repetitive upper extremity actions, and no pushing, pulling, or carrying. Davenport signed this TAD, adding the statement, "I non concure [sic] due to the job offers are repetitive work. I am willing to work as long as within Dr.'s orders."
Davenport was seen by Dr. Rutledge on March 18, 2015. He noted Davenport attempted to return to work at his recommendation but was called to do repetitive motion of her upper extremities. He further noted Davenport could not push, pull, or carry, and she could not reach above her head. He stated that if there was work within those restrictions, it was safe for Davenport to return to work. However, he also stated Davenport was not to work until he saw her again. On May 21, 2015, Dr. Rutledge noted physical therapy seemed to be helping, but Davenport reported that she still had pain in her neck, right arm, and right thumb. On June 23, 2015, Dr. Rutledge noted Davenport continued to have "lots of problems with pain in the neck, upper back, and right upper extremity." On July 14, 2015, Dr. Rutledge noted continued pain and discomfort in Davenport's right posterior shoulder and right arm, including numbness in her fingers.
Davenport was seen by Dr. Blickenstaff on September 29, 2015, who noted she had missed two appointments. He examined her right shoulder and found no tingling or numbness; no tenderness on palpation of the acromioclavicular joint; no muscle atrophy ; no swelling; no crepitus ; and normal active and passive motion. Dr. Blickenstaff noted a partial-thickness rotator-cuff tendon tear from a December 4, 2014 MRI, but he found Davenport was fit for work with the following restrictions-light duty with no lifting overhead, no pushing or pulling or repetitive reaching with the right upper extremity.
Davenport was seen for a second opinion by Dr. Kirk Reynolds on November 18, 2015, who noted the December 2014 MRI indicated a high-grade partial-thickness tear of the supraspinatus tendon primarily involving the bursal fibers. It was his opinion that greater than 51 percent of Davenport's complaints were directly related to her November 2014 work-related injury; it was reasonable to proceed with right-shoulder arthroscopy with rotator-cuff repair ; and she had not reached maximum medical improvement (MMI). Dr. Reynolds ordered another MRI to determine if the partial-thickness tear had progressed to a full thickness, retracted tear; the second MRI showed no partial-thickness tearing or full-thickness tearing of the rotator cuff tendons, but there was cervical-spine pathology. Dr. Reynolds referred Davenport to Dr. Kate McCarthy for evaluation of her cervical spine; he found she had not reached MMI, but she had no permanent rating for her right shoulder.
At the hearing, Davenport testified she was given restrictions when she was first seen at Sherwood Urgent Care that included no lifting over ten pounds and no pushing or pulling, and she relayed those restrictions to Jeff Bolden, Wal-Mart's human-resource manager at the time. She said Bolden offered her a job doing label backings, a job in which she sat and went through labels to make sure they were all placed on boxes. Davenport said she attempted to perform the job, but her medication made her sleepy, she was having muscle spasms, and the job was repetitive, which was against her work restrictions. Davenport testified when she told Bolden on November 24, 2014, she could not perform the restricted-duty job because of pain, he told her that she had to do it, but after about an hour, she told Bolden she had to leave. Davenport explained that to perform the label-backer job, she would take a stack of 3?x3? labels, sit in a folding chair, and if there was a label that was missed, she pulled it, but she did not have to place it on a box. She claimed she did not walk away from the job-she just could not perform the job. Davenport said she pulled the labels with her wrist and elbows, but she had restrictions stating she could not reach above her shoulder, perform any repetitive upper extremity action, or perform any pushing, pulling or carrying. Davenport admitted Wal-Mart provided a label-backing job for her, but she could not perform that job because it hurt, and the job offered to her was not within Dr. Rutledge's restrictions.
She testified that after she retained an attorney, she was told not to contact human resources or the job site. Davenport claimed she was still in pain after physical therapy. She ultimately had cervical-fusion surgery in May 2016 and rotator-cuff surgery in February 2017; these surgeries were paid for through Medicaid. Davenport stated she was probably still unable to do the label-backer job due to her recent surgeries. Davenport stated she did not drive; however, on cross-examination, she admitted she had driven between Searcy and Little Rock for her doctor appointments, and she also helped drive to her cousin's house in Texas.
Charla Foster, Wal-Mart's current human-resources manager, testified TADs were drafted for people who suffered on-the-job injuries and were based on physician work-status reports; she said restricted-duty work was provided to the extent possible. Foster said if a TAD follows physician restrictions, but an associate states she still cannot perform the work, human resources would be contacted to ensure the paperwork matched what the physician had ordered. Foster was familiar with the label-backing job, stating the position was used for restricted duty; employees were allowed to sit in a chair to perform the job; the purpose of looking through the labels was to ensure no labels were missed, as the labels were used to bill and ship; the labels weighed less than 10 pounds; the labels could be grasped with one hand, although it would take two hands to pull a label off; but hopefully, if the employees were performing their jobs, there would not be many labels that were missed. Foster said the last day Davenport worked was December 13, 2014. On cross-examination, Foster acknowledged a person was required to flip through each of the labels, which was a repetitive sort of job. Foster reviewed the information found in each TAD, noting that while Davenport's last day to work was December 13, 2014, TADs were created on December 20, 2014, January 5, 2015, and February 22, 2015.
When the Commission denies benefits because a claimant failed to meet his or her burden of proof, the appellate court will affirm if the Commission's decision displays a substantial basis for the denial of relief. Watts v. Sears Roebuck & Co. , 2011 Ark. App. 529, 386 S.W.3d 19. On appeal, we view the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Collier v. Walmart Assocs., Inc. , 2018 Ark. App. 129, 544 S.W.3d 69. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Clark v. Williamson G.C., Inc. , 2018 Ark. App. 331, 550 S.W.3d 458. If reasonable minds could have reached the result in the Commission's decision, we must affirm. Watts, supra. Questions regarding the weight and credibility to be given to evidence and witness testimony are within the sole province of the Commission; the Commission is not required to believe the claimant's testimony or the testimony of any other witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Templeton v. Dollar Gen. Store , 2014 Ark. App. 248, 434 S.W.3d 417.
Davenport first argues the Commission arbitrarily disregarded witness testimony; specifically, she contends the Commission arbitrarily disregarded her testimony that the job offered to her was not within Dr. Rutledge's restrictions, as well as Charla Foster's corroborating testimony that the job offered to her was repetitive. It is true the Commission may not arbitrarily disregard the testimony of any witness or other evidence submitted in support of a claim. Edens v. Superior Marble & Glass , 346 Ark. 487, 58 S.W.3d 369 (2001). However, our review does not convince us that the ALJ arbitrarily disregarded any witness testimony or evidence. The ALJ found,
The claimant's job was going to consist of sitting in a chair and looking through a box for labels. It was clear from the testimony that the so called job of "label backing" was not a heavy lift. Claimant's objections were that it was repetitive and even the witness for the respondent admitted that the action was repetitive. It is clear that although the action was repetitive for the wrist, it was not a repetitive action for the shoulder of the claimant, the actual part of the body of the claimed injury. Consequently, the actual action that the claimant was required to perform was not a repetitive action involving the claimant's shoulder, but of the wrist and hand.
This portion of the ALJ's opinion makes it clear he did not arbitrarily disregard any witness testimony or evidence. Rather, he did not weigh the evidence in the manner Davenport desired. Our court is powerless to reweigh the evidence or to make credibility determinations. Templeton , supra. We affirm on this point.
Davenport also argues that the Commission's opinion does not display a substantial basis for the denial of relief. We disagree. Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Johnson v. Abilities Unlimited, Inc. , 2009 Ark. App. 866, 372 S.W.3d 838. Arkansas Code Annotated section 11-9-526 (Repl. 2012) provides, "If any injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Workers' Compensation Commission, the refusal is justified."
Here, the ALJ found Wal-Mart had at all times made suitable employment available to Davenport within her physical restrictions until such time Davenport left work and never returned. Although Davenport claimed the work offered by Wal-Mart was not within Dr. Rutledge's restrictions, as discussed above, the job was not repetitive for the body part that was injured and for which the restrictions were designed-her right shoulder. Therefore, Wal-Mart did offer Davenport a job within her stated restrictions, and Davenport refused to perform the job. Davenport is not entitled to TTD pursuant to section 11-9-526 because she refused suitable employment within her capacity. See Turcios v. Tyson Foods, Inc. , 2016 Ark. App. 471, 504 S.W.3d 622.
Affirmed.
Vaught and Hixson, JJ., agree.
CMI Claims Management, Inc., is also an appellee; for simplicity's sake, we will simply refer to the appellees as Wal-Mart.
Arkansas law allows the Commission to adopt the opinion of the ALJ as its own, making the ALJ's findings and conclusions its findings and conclusions. Gunter v. Bill's Super Foods, Inc. , 2018 Ark. App. 134, 544 S.W.3d 571. When the Commission adopts the ALJ's opinion as its own, for the purpose of appellate review we consider both the ALJ's opinion and the Commission's majority opinion. Id.
Medical records state that the injury occurred on two different dates-November 14 and November 16, 2014.
The restrictions listed in the TAD are of poor quality and illegible; however, neither party disputes the information contained in the TAD. | [
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PHILLIP T. WHITEAKER, Judge
A Mississippi County jury convicted appellant Gregory Rose of one count of harassment, a Class A misdemeanor, and sentenced him to eleven months, twenty-nine days in the Mississippi County jail; Rose was also ordered to pay a $2,500 fine. Rose raises three arguments on appeal: (1) the evidence was insufficient to support his harassment conviction; (2) the circuit court abused its discretion in admitting evidence of his past convictions during sentencing; and (3) the circuit court erred in refusing to set an appeal bond. We affirm.
I. Sufficiency of the Evidence-Harassment
A person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he or she strikes, shoves, kicks, or otherwise touches a person, subjects that person to offensive physical contact or attempts or threatens to do so; or, in a public place repeatedly insults, taunts, or challenges another person in a manner likely to provoke a violent or disorderly response. Ark. Code Ann. § 5-71-208(a)(1) & (4) (Repl. 2016).
Rose argues that there was insufficient evidence to convict him of harassment. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Castrellon v. State , 2013 Ark. App. 408, 428 S.W.3d 607. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Armour v. State , 2016 Ark. App. 612, 509 S.W.3d 668. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Reese v. State , 2018 Ark. App. 336, 552 S.W.3d 47. We do not weigh the evidence presented at trial nor do we weigh the credibility of the witnesses. Id. Decisions regarding the credibility of witnesses are for the trier of fact. Robinson v. State , 353 Ark. 372, 108 S.W.3d 622 (2003). The fact-finder is not required to believe any witness's testimony, especially the testimony of the accused, because the accused is the person most interested in the outcome of the trial. Mooney v. State , 2009 Ark. App. 622, 331 S.W.3d 588. With these standards in mind, we turn our attention to the evidence presented at trial.
In July 2016, Stephanie Merritt was a customer at Gary's Junior Food Mart in Osceola. She had just completed her purchase and was chatting with the store clerk, Aretha Adams, when Rose entered the store with another man. After a short exchange, Rose grabbed or touched Merritt's breast. Merritt hit Rose's hand with her key chain. Using some profanity, Merritt told Rose, "You don't touch a woman's breast" and stated, "That's a good way to get shot." In response, Rose said, "How you gonna talk about shooting somebody that ain't even got no pistol?"; and he pulled a realistic-looking BB gun out of his waistband. Adams attempted to calm everyone down, and Rose eventually left the store at the urging of the other man who had come in with him. Merritt contacted the police to report the incident.
On appeal, Rose does not argue that he did not touch Merritt's breast. Instead, he asserts that there was no evidence that he intended for his touching of Merritt to be offensive. In support of his argument, Rose cites his own testimony at trial wherein he stated that he meant no annoyance or harm to Merritt and suggested that she was not scared or offended. Moreover, while he acknowledges that Merritt hit him with her key chain, he contends that this was "not a violent or disorderly response" as is required by section 5-71-208(a)(4). He insists that his conduct toward Merritt was "simply ... a playful and friendly manner" and was not intended to alarm or annoy her.
Rose's argument thus focuses on his intent or purpose. This court has noted that a criminal defendant's intent or state of mind is seldom apparent. Wells v. State , 2012 Ark. App. 596, at 7-8, 424 S.W.3d 378, 384-85 (citing Tarentino v. State , 302 Ark. 55, 786 S.W.2d 584 (1990) ). One's intent or purpose, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence but may be inferred from the facts and circumstances. Id. Because intent cannot be proved by direct evidence, the fact-finder is allowed to draw on common knowledge and experience to infer it from the circumstances. Jones v. State , 2009 Ark. App. 135, 2009 WL 464966. Because of the difficulty in ascertaining a defendant's intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts. Id.
We find Rose's arguments unpersuasive. At trial, Merritt testified that Rose "grabbed" her breast and that she was "really upset" about it, enough so that she decided to press charges. Aretha Adams testified that although she did not see the contact, Merritt started cursing at Rose shortly after he had come into the store and saying he had touched her breast. Adams said that Merritt was "roused up" and that Adams had to calm her down. According to Osceola Police Department patrolman Matthew Richardson, who took Merritt's report, Merritt was "aggravated" and "upset" by the incident.
The jury was entitled to draw its conclusions from the testimony and from the visual evidence on the videotape; it was not compelled to believe Rose's self-serving testimony that he meant no offense by touching Merritt's breast. See Mooney , supra. The jury plainly found Merritt's testimony credible and gave greater weight to it, which was entirely within its province to do. See Ortega v. State , 2016 Ark. 372, at 5, 501 S.W.3d 824, 827 (it is "the sole province of the jury to determine a witness's credibility, as well as the weight and value of his testimony."). As noted above, this court considers only the evidence that supports the verdict, and it does not reweigh the evidence. Mooney , supra. Based on the evidence presented, we cannot conclude that the circuit court erred in denying Rose's motion for directed verdict.
II. Prior Convictions
Rose next argues that the circuit court erred in allowing evidence of his previous convictions to be introduced in the sentencing phase of his trial. During sentencing, the State sought to introduce evidence of three felony convictions and multiple misdemeanor convictions. Rose objected to the introduction of the misdemeanor convictions but expressly withdrew an objection to the introduction of the felonies. The circuit court overruled Rose's objection, and the State introduced evidence of the three felonies and twelve of Rose's misdemeanor convictions. On appeal, Rose assigns error to the circuit court's decision to allow the introduction of "many drug-related felonies" during his sentencing for a single misdemeanor conviction.
Sentencing is controlled entirely by statute. Burgess v. State , 2016 Ark. 175, at 7, 490 S.W.3d 645, 650. Arkansas Code Annotated section 16-97-101(2) (Repl. 2016) provides that if a defendant is found guilty of one or more charges, "the jury shall then hear additional evidence relevant to sentencing on those charges." Under section 16-97-103(2), "evidence relevant to sentencing" is defined to include, among other things, "[p]rior convictions of the defendant, both felony and misdemeanor. The jury may be advised as to the nature of the previous convictions, the date and place thereof, the sentence received, and the date of release from confinement or supervision from all prior offenses."
In reviewing a circuit court's decision to admit evidence of prior convictions during the penalty phase of a trial, this court has recognized that the circuit court has wide discretion in allowing such evidence to be presented, and we will not reverse such a decision absent an abuse of discretion. Jiles v. State , 78 Ark. App. 43, 46, 82 S.W.3d 173, 174 (2002) (citing McClish v. State , 331 Ark. 295, 962 S.W.2d 332 (1998) ). The abuse-of-discretion standard of review is a high threshold, and it requires that a circuit court act improvidently, thoughtlessly, or without due consideration. Steele v. State , 2014 Ark. App. 257, at 12, 434 S.W.3d 424, 432.
Rose concedes that the circuit court possesses discretion in the admission of evidence during sentencing. Nonetheless, he argues that the introduction of his prior convictions constituted an abuse of discretion since he was only convicted of a single misdemeanor count of harassment. He further contends that the admission of multiple prior offenses was "not relevant to his interaction" with Merritt. The State correctly notes that Rose waived his challenge to the admission of the felony convictions when he expressly withdrew his objection to their introduction. It also contends that the circuit court did not err in the sentencing stage. We agree.
In deciding to admit Rose's previous convictions during the penalty phase, the court offered its reasoning from the bench:
Okay. I'm gonna allow the State to offer the proposed convictions and I'm going to use my discretion in making that decision based on the fact that it appears that the State has a rational and reasonable basis for its position in applying the Arkansas Sentencing Commission Guidelines.[ ] I realize those are not mandatory and are just advisory in nature, but it appears that presents a reasonable position to follow that. And, with respect to the number of misdemeanors I think that it is indicative of some pattern following the previous felonies that I think can be of some benefit to the jury in making a decision that they deem to be appropriate. And they can choose to ignore those because they're misdemeanors based on any argument that defense counsel may make, or they can consider whether they believe them to be relevant for purposes of their sentencing on this case.
Clearly, the circuit court did not act improvidently, thoughtlessly, or without due consideration in deciding to admit evidence of Rose's prior convictions. The court recognized that the jury could give the evidence whatever weight it chose to give it, and it acknowledged the defense's prerogative to argue what weight the jury should give the evidence. This decision was not an abuse of discretion.
III. Appeal Bond
Following his conviction and the filing of his notice of appeal, Rose filed a motion to set an appeal bond. The circuit court held a hearing on the motion and ultimately denied it. In his third point on appeal, Rose assigns error to this decision. Because we are affirming Rose's conviction, however, any argument pertaining to the denial of his appeal bond is moot. See Walley v. State , 353 Ark. 586, 609, 112 S.W.3d 349, 362 (2003) ; Shields v. State , 348 Ark. 7, 17, 70 S.W.3d 392, 397 (2002) ; Boen v. State , 2010 Ark. App. 39, 2010 WL 135316.
Affirmed.
Gruber, C.J., and Brown, J., agree.
Rose was also charged in an amended information with one count of aggravated assault and being a felon in possession of a firearm. The jury acquitted him of aggravated assault and its lesser-included offense of first-degree assault, and the State nolle prossed the felon-in-possession charge before trial after Rose moved to sever that count.
The complete statute contains four additional subsections defining other ways a person can commit the offense of harassment; however, in the instant case, subsections (1) and (4) are the two that were specifically enumerated in the jury instructions.
At trial, the State played a videotape of the encounter. Although there is no audio on the tape, the video shows Rose reaching out and making contact with Merritt's breast with his hand; she then hits him with her key chain.
The State represented that it was limiting the admission of Rose's prior convictions to conform to the Arkansas Sentencing Guideline Criminal History Score Worksheet, such that only those misdemeanors committed within the last ten years would be introduced. | [
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DAVID M. GLOVER, Judge
On May 14, 2016, while driving his vehicle Sergio Garza hit a motorcycle. Joe Payte, the driver of the motorcycle, suffered serious injuries, and the passenger, Charlene Payte, Joe's wife, died as a result of the injuries she sustained in the accident. Garza was convicted by a Montgomery County jury of the offenses of leaving the scene of an accident involving death or personal injury, battery in the first degree, and negligent homicide. He was sentenced to six years in prison for leaving the scene of an accident, and twenty years each for the battery-in-the-first-degree and negligent-homicide convictions, with the sentences ordered to be served consecutively. On appeal, Garza argues the circuit court erred in denying his motions for directed verdict. We affirm.
At trial, David Godsey testified that on the night of the accident, he saw the body of Charlene Payte lying partially in the road on the edge of Highway 182. He stopped to investigate and found Charlene Payte facedown and unresponsive; he called 911, but she passed away before she could receive medical assistance. Godsey heard Joe Payte yelling; he found Joe lying in the ditch severely injured. While Godsey did not see the accident, Joe told him he and Charlene had been hit.
According to paramedic Michael Williams, Joe suffered life-threatening injuries in the accident and was in an excruciating amount of pain. Williams administered IV fluids to keep Joe's blood pressure elevated, and Williams testified Joe would not have lived much longer if he had not received emergency medical care.
Arkansas State Trooper Ryne Shelton investigated the accident and concluded the Paytes were rear-ended by Garza. He explained Garza left over 170 feet of skid marks, indicating he was traveling at a somewhat high rate of speed; the motorcycle was in the westbound lane in the middle of a turn when it was hit, which is the lane for oncoming traffic; and Garza's vehicle hit the motorcycle from behind with such force the motorcycle's taillight was impaled in the grill of Garza's vehicle and Garza's airbags were deployed. Trooper Shelton testified a Montgomery County deputy sheriff located Garza and returned him to the scene in handcuffs; Garza had a strong odor of intoxicants on his breath, which led Trooper Shelton to believe alcohol might be involved. He explained that the accident occurred at 7:32 p.m., and while Garza consented to have his blood drawn for testing, anytime a nurse would come near him with a needle, he would begin yelling, and the nurse felt it was unsafe to attempt to draw blood. Trooper Shelton offered Garza a urine test at 12:05 a.m., and a urine sample was taken thirty minutes later-five hours after the accident. Trooper Shelton testified he administered field-sobriety tests of horizontal-gaze nystagmus, walk and turn, and one-leg stand to Garza prior to Garza's urine test. He said Garza had distinct sustained nystagmus at maximum deviation in both eyes, as well as onset of nystagmus prior to forty-five degrees, which indicated impairment; Garza lost his balance during the instruction stage of the walk-and-turn test, used his arms for balance, stepped off the line, had improper turning, and stopped while walking, which were all clues of impairment; and he provided multiple clues during the one-leg-stand test, such as putting his foot down, using his arms for balance, and swaying while he balanced. Trooper Shelton reached the conclusion Garza was impaired as a result of his performances on these field-sobriety tests.
A forensic toxicologist from the state crime lab testified Garza's urine tested positive for amphetamines, although she could not determine the amount of amphetamines in his urine and did not know if Garza had enough amphetamines to be intoxicated. A second toxicologist from the state crime lab testified she conducted a test on Garza's urine and found .072 percent alcohol at the time of the test, which translated to .055 percent in Garza's blood at that time; she also found methamphetamine and amphetamines in Garza's urine, but she did not conduct quantitative testing of the amounts.
Chad Davis, a deputy at the Montgomery County Sheriff's Department, testified he was assigned the task of locating Garza; after receiving a tip, he found Garza at his sister's residence about a quarter of a mile from the accident. Garza's sister said he had just arrived, which was about forty-five minutes to an hour after the wreck. Davis found Garza sitting on the couch in his sister's house; when Garza attempted to stand, he fell back onto the couch and required assistance to stand up. Davis stated he had to hold Garza up to walk him out the door, and he arrested Garza for leaving the scene of an accident. Davis returned Garza to the scene of the accident and transferred him to Trooper Shelton's custody. It was Davis's opinion that Garza was intoxicated at that time.
Neal Thomas, a criminal investigator with the Arkansas State Police, assisted in the crash investigation. It was Thomas's opinion the motorcycle was impacted by a vehicle from the rear. Thomas testified that according to his training, the average dissipation rate of alcohol in the human body is about .015 percent an hour.
The State rested after Thomas's testimony. Garza moved for directed verdicts on all three counts. Garza's counsel argued there was no evidence Garza knew there was a person visible to him after the accident; therefore, he could not be guilty of leaving the scene of the accident; as to first-degree battery, he argued there was no evidence of Garza's intent to injure anyone; and as to negligent homicide, he argued there was no evidence Garza was negligent. Those motions were denied.
Beau Graves testified for the defense. He stated he lived in the area where the wreck occurred, he saw a car being driven down the road, quickly and then he heard the "boom" of the wreck. Graves said the driver then pulled into his driveway, parked by the edge of the woods, and a person he identified as Garza got out of the car and got into another car with another person. Graves said he did not know if Garza was intoxicated, and when he asked Garza what he hit, Garza said he did not know-maybe a cow, a dog, or a motorcycle.
Garza testified in his own defense. He stated that, on the day of the accident, he had some whiskey to drink "pretty much" right before the accident, got into his car to drive to his sister's house, and the accident happened. Although Garza denied using methamphetamine on the day of the accident, he admitted he had used the drug the day before. However, he denied that he had been under the influence of either methamphetamine or alcohol the day of the wreck.
Garza explained that as he was driving to his sister's house, a motorcycle was in front of him in the same lane, and when he began to pass the motorcycle, it "pretty much" came into the lane in front of him, and he slammed on his brakes and closed his eyes. He said after the impact, he thought the accident "wasn't real"; he looked around and did not see anyone; he did not see the motorcycle; and he was unaware there was anyone injured. Garza then drove to his sister's house, which was where the officer found him and took him back to the accident site. Garza admitted it was difficult to take a blood sample from him because he has a needle phobia, but he agreed to provide a urine sample.
On cross-examination, Garza testified he knew the motorcycle was in front of him because it turned right in front of him. He claimed he did not intend to hit the motorcycle; when he looked up he did not see any people or the motorcycle; he did not see anyone to give aid to or to provide his name or insurance information to; and if he hit the motorcycle it was an accident. He denied he told Dr. Paul DeYoub he had drunk a half pint of whiskey and had used methamphetamine five hours prior to the accident.
The defense rested after Garza's testimony. Counsel renewed Garza's directed-verdict motions, which the circuit court again denied.
The State recalled Neal Thomas to the stand to explain why he disagreed with Garza's version of events. After Thomas's rebuttal testimony, the jury found Garza guilty of all three offenses.
We are unable to reach the merits of Garza's arguments because they are not preserved for appeal. Although Garza made directed-verdict motions at the close of the State's evidence and at the close of his case, he failed to renew his directed-verdict motions after the State recalled Neal Thomas as a rebuttal witness. Rule 33.1(a) of the Arkansas Rules of Criminal Procedure provides that in a jury trial, a motion for directed verdict shall be made at the close of the State's evidence and at the close of all the evidence. The failure to challenge the sufficiency of the evidence at the times and in the manner required constitutes a waiver of a sufficiency-of-the-evidence argument on appeal. Ark. R. Crim. P. 33.1(c) (2017). Failure to renew a motion for directed verdict after the close of the State's rebuttal testimony waives the issue of sufficiency of the evidence on appeal. Harrison v. State , 2017 Ark. App. 580, 533 S.W.3d 146. A renewal is more than a matter of mere form; it goes to the substance of the evidence against a criminal defendant. Id. Although Garza initially made his directed-verdict motions at the close of the State's case and renewed those motions at the close of the presentation of his evidence, he failed to renew his motions after the close of the State's rebuttal testimony and thus waived any challenge to the sufficiency of the evidence on appellate review.
Affirmed.
Vaught and Hixson, JJ., agree.
Joe Payte died several weeks later, on June 21, 2016, as a result of the injuries he sustained in the accident. | [
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DAVID M. GLOVER, Judge
This case began when Elizabeth Burnham filed a petition to enjoin Randy Price from interfering with her easement over a portion of Price's property. The issues on appeal, however, have nothing to do with the easement. Instead, Burnham's appeal 1) challenges the trial court's dismissal of the case for lack of subject-matter jurisdiction and 2) contends the dismissal of Price's counterclaim for want of prosecution did not act as an adjudication on the merits. We affirm.
On October 30, 2015, Burnham filed the petition to enjoin Price, and he answered and counterclaimed on December 2, 2015. The case was set for trial on May 16, 2016, but Burnham filed a motion to continue, which was granted. The trial was rescheduled for July 11, 2016. On June 15, 2016, Burnham filed her "reply to answer," motion to strike, and answer to counterclaim.
On July 11, 2016, Burnham orally moved for nonsuit, and the motion was granted by the trial court. On March 3, 2017, Price's counterclaim was dismissed for want of prosecution. On March 31, 2017, Burnham presented to the court clerk a second (pro se) petition to enjoin, which was filed under the same case number as the original. The second petition made additional allegations and sought both equitable and monetary damages. On July 22, 2017, Price filed a motion to dismiss, asserting in essence that Burnham failed to comply with the Arkansas Rules of Civil Procedure, which required dismissal of her second petition.
A hearing on the motion to dismiss was held on August 29, 2017. The trial court questioned its jurisdiction to hear the case. After colloquy among the court, counsel, and Burnham, the trial court concluded it lacked jurisdiction to hear the second petition and dismissed the case with prejudice.
In challenging the trial court's dismissal of the case for lack of subject-matter jurisdiction, Burnham frames the issue as follows:
[T]he issue is whether the filing of a new petition under the previous case number prevents the trial court from exercising jurisdiction over the new petition. In other words, whether Ms. Burnham's second petition was a "new action" for the purpose of the savings statute, Ark. Code Ann. § 16-56-126, even if the Clerk filed the new petition under the same docket number.
Arkansas Code Annotated section 16-56-126 (Repl. 2005) provides in pertinent part:
(a)(1) If any action is commenced within the time respectively prescribed in this act, in §§ 16-116-101 - 16-116-107, in §§ 16-114-201 - 16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit, or after a verdict for him or her the judgment is arrested, or after judgment for him or her the judgment is reversed on appeal or writ of error, the plaintiff may commence a new action within one (1) year after the nonsuit suffered or judgment arrested or reversed.
(Emphasis added.) In making her argument, Burnham relies upon Tucker v. Sullivant , 2010 Ark. 170, 370 S.W.3d 812. In Sullivant , the appellants filed an amended complaint under the same docket number as their previously nonsuited complaint, and timely service was completed. Id. The trial court dismissed the action for failure to comply with the savings statute because the amended complaint was filed under the same docket number as the original complaint that had been voluntarily nonsuited. The Tuckers appealed the dismissal to our supreme court. The supreme court stated the issue as "whether Appellants' filing of a complaint under the same docket number, as a previously nonsuited case, constituted the commencement of a new action for purposes of the savings statute." Id. at 3, 370 S.W.3d at 814 (citations omitted). The supreme court concluded that it did and reversed and remanded the trial court's dismissal. The supreme court reasoned:
Here, Appellants filed a complaint within the one-year period prescribed in the savings statute. Moreover, they timely completed service of that complaint as required by Ark. R. Civ. P. 4 (2009). This court has recognized that an action is commenced by filing a complaint with the clerk of the proper court. However, effectiveness of the commencement date is dependent upon meeting the requirements of service as set forth in Rule 4(i). Appellants satisfied both those requirements. If we were to accept Appellee's argument that the timely filing of Appellants' "amended" complaint did not satisfy the commencement requirement of the savings statute, we would be exalting form over substance and violating the stated purpose of the savings statute. Neither the fact that the case was filed under the previous docket number, nor the fact that Appellants paid a reopening fee, as opposed to a new filing fee, prejudice Appellee. Accordingly, the filing of the amended complaint in this cause satisfied the requirement of the savings statute that a new action be commenced within one year. The order of the circuit court is hereby reversed and remanded.
Id. at 9, 370 S.W.3d at 817.
If Sullivant were the end of the story, we think Burnham would have the winning argument. However, Sullivant was decided in 2010, and in 2011 Rule 3 of our rules of civil procedure was amended to provide in pertinent part:
(c) The clerk shall assign a new case number and charge a new filing fee for the filing of any case that is refiled after having been dismissed.
(Emphasis added.) Under the amended Rule 3, a new case number is mandatory in a case that is refiled after having been dismissed.
Here, a new case number was not assigned to Burnham's second petition to enjoin. We fully recognize that we have no authority to overrule our supreme court's opinion in Sullivant . However, we conclude that the amended Rule 3 effectively overrules it and controls our decision in this case. Consequently, we find no error in the trial court's dismissal with prejudice of Burnham's second petition.
We do not address the merits of Burnham's second point of appeal, contending the dismissal of Price's counterclaim for want of prosecution did not act as an adjudication on the merits. Not only does Burnham acknowledge the argument was not addressed by the trial court, our decision regarding the first point of appeal makes it unnecessary to address this second point.
Affirmed.
Abramson and Vaught, JJ., agree. | [
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BRANDON J. HARRISON, Judge
Doug Riley appeals a judgment entered in favor of Welcometotulum Investment Properties, LLC (WIP). He argues that the circuit court's judgment should be reversed based on frustrated performance of the contract, estoppel, waiver, unclean hands, and substantial performance. We disagree and affirm.
On 31 October 2013, James Green and Doug Riley entered into a real estate contract in which Green agreed to sell, and Riley agreed to purchase, property located at 114 Coca Bay Point, Hot Springs, Arkansas. Under the terms of the contract, the selling price was $425,000, of which $85,000 was paid, leaving $340,000 due and payable on 31 October 2018. The contract provided that until the balance of the purchase price was paid, Riley would pay a "carrying charge" of $1800 a month, due and payable on the last day of each month. Riley was also required to obtain and maintain an insurance policy for the property. The contract also provided for a thirty-day grace period after the last day of the month within which to make that payment without being in default. However, after the expiration of that thirty days, Green had the option of declaring the contract forfeited, and Riley would be required to vacate the premises and return possession to Green.
On 27 October 2016, Green quitclaimed his rights and interest in the property to WIP. That same date, Green also executed an assignment of contract that assigned his interest in the contract to WIP. On 1 November 2016, WIP gave Riley a notice of default, notice to quit, and demand for possession of property. The notice alleged that Riley had defaulted by failing to make payments in a timely manner, declared the contract terminated and forfeited, and demanded that Riley vacate the premises on or before 11 November 2016.
Riley did not do so, and on 18 November 2016, WIP filed a complaint in unlawful detainer. WIP alleged that it was entitled to possession of the premises, reasonable rent for the period of time that Riley unlawfully occupied the premises, statutory damages for unlawful detainer, reimbursement for cleaning and repair costs, and attorney's fees. Riley answered and averred that he was current on all payments. He also denied receiving the notice of default and affirmatively pled a myriad of affirmative defenses, including unjust enrichment, unclean hands, waiver, and estoppel.
The circuit court convened a bench trial on 3 April 2017. Michael Tankersley, the managing member of WIP, testified that he purchased the Coca Bay property and an assignment of contract and promissory note from James Green. After the purchase, Tankersley notified Riley of the purchase by mailing him a notice and by putting a copy of the notice on his front door. The notice instructed Riley to remit all payments to a post office box or to deliver payments in person to an address on Malvern Avenue between the hours of 9:00 a.m. and 4:00 p.m., Monday through Friday. At the time of WIP's purchase of the contract, which was October 27, Riley had not made his payment that was due on September 30. Tankersley paid Green that amount, $1800, in anticipation of collecting the money from Riley.
Under the grace-period clause of the contract, Riley had until October 30 to submit his September 30 payment to avoid default. On Saturday, October 29, Riley contacted Tankersley by text message, said that he (Riley) was sick, and offered to put the payment "through the door" at WIP's office. Tankersley responded that that was not a good idea, as there was construction going on and quite a few people going in and out, and that they should just see how Riley was feeling the next day. Riley text-messaged Tankersley again on Sunday, October 30, and said, "I know it's family day I can find u later this afternoon if not early tom your call." Tankersley told Riley to just give him a call in the morning, which would be Monday, October 31. They arranged to meet at 2:00 on Monday afternoon, but Riley did not show up for the meeting.
On the morning of Tuesday, November 1, Riley texted Tankersley that the payment was "in the door at your office." Tankersley responded that they needed to meet "to discuss the matter of your outstanding balance." Riley replied, "I tried all afternoon to find you so I stuck it thru your door." In response, Tankersley said, "You didn't try all day. We had a meeting set for 2 you didn't show for, we need to meet today to discuss." Riley never responded.
Tankersley explained that he received the September 30 payment thirty-two days after the actual due date, which is a default under the contract, so he asked Riley to vacate the property by delivering a notice of default to Riley's residence at the Coca Bay property on November 1. Riley was instructed to vacate on or by November 11. Tankersley received the check that Riley had put under the door, but he did not cash it because Riley was in default. Tankersley later received more checks from Riley, which were also not cashed.
While Riley was in default, Tankersley received and paid an insurance bill for the property in the amount of $1244.49. He also noted damage to the property, including fire damage from a car fire in the driveway, that required repairs. Finally, Tankersley said that he had checked with the bank, and the checks he received from Riley were non-sufficient-fund checks.
Joseph Patrico, vice president of Citizens Bank, testified that Tankersley asked him, on February 17 and March 6, to verify three checks from Riley and that there were not sufficient funds for those checks on those dates.
Riley testified that he had paid a total of $218,800 on his contract, and he denied that he had insufficient funds to cover the checks he gave to Tankersley. He said that he first found out about the assignment of the contract to WIP on October 28 when he met with James Green. Riley said that WIP had never contacted him, but he also said that he knew Tankersley and "started trying to tender the payment to [him]." He denied that Tankersley had ever served him with notice of the purchase, either by mail or by posting it to his door. Riley said that he spoke to Tankersley a couple of times between October 28 and October 31, trying to make arrangements to make payments, but had no contact with him after October 31. He also said he had made a lot of repairs to the house and had a substantial investment in the property. As to the insurance bill, Riley testified that his arrangement with Green was that Green would pay the insurance and Riley would reimburse him but that he never saw the bill paid by Tankersley.
Riley said that he made the September 30 payment on October 31. Riley acknowledged that under the contract, the $1800 carrying charge was due on the last day of each month, and the grace period for each payment was thirty days, but he said that the contract was "a little tricky" and that he did not really understand it. His understanding was that he had until the last day of the month to make his late payment. He also said, however, that he did not read the contract with Green before signing it and that he did not consult an attorney.
In closing argument, WIP's counsel argued that Riley had clearly violated the terms of the contract by making his September 30 payment past the thirty-day grace period and that WIP had acted within its rights and taken appropriate steps to terminate the contract. Riley's counsel argued that the contract was ambiguous and thus should be construed against the maker, which was James Green. Counsel also argued that Riley had substantially complied with the contract and should not have to forfeit the large sum of money he had already put into the property. The court ruled that Riley was in default, and its written order made the following findings:
1. That the contract at issue is a mutual agreement among the parties.
2. That the terms of the contract are not ambiguous with respect to the due date for payment of the monthly carrying charges or the penalties for default.
3. That Defendant defaulted on his obligations under the contract by failing to make payments as required thereby, by failing to pay insurance premiums as required, and by failing to properly maintain the property as required.
4. Plaintiff is entitled to the issuance of a Writ of Possession for the real property described in the Complaint and located at 114 Coca Bay Point, Hot Springs, Arkansas.
5. Plaintiff is awarded judgment against Defendant in the total amount of $12,294.78, consisting of the following damages:
a. Unpaid rent from October 1, 2016 through April 3, 2017 at the rate of $60.00 per day, totalling $11,100.00.
b. Unpaid insurance premiums in the amount of $1,194.78.
6. Plaintiff is also awarded judgment against Defendant for its litigation costs in the amount of $2280 and for its attorney's fees in the amount of $919.87.
Riley has appealed this order.
Our standard of review on appeal in civil bench trials is whether the circuit court's findings were clearly erroneous or clearly against a preponderance of the evidence. Patel v. Patel , 2015 Ark. App. 726, 479 S.W.3d 580. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. Id. We must give recognition to the circuit court's superior opportunity to determine the credibility of witnesses and the weight to be given to their testimony. S. Bldg. Servs., Inc. v. City of Ft. Smith , 2013 Ark. App. 306, 427 S.W.3d 763.
Riley first argues that he attempted to make payments on October 29 and October 30 but that Tankersley refused payment on those dates, and this refusal to accept payment constituted frustration of performance, which is a complete defense to a breach-of-contract claim. In response, WIP denies any frustration of performance. WIP asserts that Riley made no attempt to pay on October 29 or October 30, that Tankersley agreed to accept payment at the 2:00 p.m. meeting on October 31, and that Riley failed to pay him at that time or even contact him until the morning of November 1. Thus, Tankersley gave Riley the opportunity to make his payment as late as 2:00 p.m. on the day after the grace period expired, but Riley did not submit his payment.
Next, Riley argues that WIP should be estopped from demanding payment after he refused to allow him to make his payment. He again argues that WIP refused payment on October 29 and 30 and also notes that the notice of assignment made no provision for making payments on the weekend, so a reasonable interpretation is that payment could be made the following business day after the weekend, which would have been Monday, October 31. "By denying Riley the opportunity to leave payment at its office and not providing an alternative location on the weekend before default would occur, appellee misled Riley into thinking that it would not strictly comply with the time payment was to be received."
WIP responds that, as with Riley's first argument, this argument is based on the false premise that it refused to accept payment from Riley. WIP also argues that whether Riley put the payment under the door on the evening of October 31 or the morning of November 1, "the payment was late and the fact that Riley slipped the payment under the door shows that he never believed that Tankersley had forbidden him from doing so." WIP contends it is "preposterous" to argue that it should be estopped from exercising its express contractual rights because Tankersley "forbade" Riley from sliding the payment under the door.
Riley additionally argues that by refusing Riley's attempt to timely pay on October 29 or October 30, and insisting that Riley pay on October 31, WIP "waived its ability to insist upon strict performance of the contract by payment of a certain date." In response, WIP notes that by the express terms of the contract, even if it waived performance on one occasion, it was not obligated to waive it on another. In this case, it waived performance until 2:00 p.m. on October 31, but when Riley failed to appear and make the payment at that time, it was not obligated to waive performance beyond that time and did not do so.
Riley further argues that the unclean-hands doctrine is applicable in this case based on (1) WIP's refusal to allow payment on October 29 or October 30; (2) the insistence that Riley pay on October 31, when he would arguably be in default; and (3) uncertainty or ambiguity with regard to payments on the weekends. Riley also contends that the contract is "unconscionable" and describes WIP's actions as "predatory." WIP responds that once again, Riley's argument is based on false statements. It also denies that the contract is unconscionable and notes the circuit court's finding that this contract involved "two businessmen" who are free to "sit at a table and negotiate a document." WIP also notes Riley's admission that he knew about the forfeiture clause and had the opportunity to review the contract or have an attorney review the contract, but he chose not to do so.
Finally, Riley asserts that there was no material breach of the contract in this case and that he substantially complied with the contract's terms. He cites case law stating that "a relatively minor failure of performance on the part of one party does not justify the other seeking to escape any responsibility under the terms of the contract." Harness v. Curtis , 87 Ark. App. 337, 341, 192 S.W.3d 267, 270 (2004) (citing Vereen v. Hargrove , 80 Ark. App. 385, 96 S.W.3d 762 (2003) ). In response, WIP distinguishes Harness by noting that in that case, Harness made a payment within his thirty-day grace period, and Curtis attempted to terminate the contract within the grace period. In the present case, however, Riley attempted to make his payment after the grace period had expired and thirty-two days after the payment was due, which WIP contends was a material breach. In addition, WIP argues that Riley's failure to maintain an insurance policy and failure to maintain repairs on the property also constituted material breaches of the contract.
We are not persuaded by Riley's arguments. According to Riley's own testimony, he was made aware of the assignment on October 28, and he was a personal friend of Tankersley, yet he made no attempt to pay on that date. Contrary to Riley's repeated assertions, he did not attempt to make any payments on October 29 or October 30, and while Tankersley did agree to accept payment at 2:00 p.m. on October 31, Riley failed to deliver the payment at that time. At that point, Riley was in default, and WIP was within its rights to terminate the contract. We therefore affirm the circuit court's order.
Affirmed.
Gruber, C.J., and Glover, J., agree. | [
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COURTNEY HUDSON GOODSON, Associate Justice
Appellant James Flowers is an inmate incarcerated in the Arkansas Department of Correction. In 2016, he filed a petition for writ of mandamus in which he sought an order directing the prosecuting attorney to comply with a request that Flowers had made under the Freedom of Information Act (FOIA) for copies or access to evidence and documents that he indicated were related to the criminal investigation that led to his conviction in the case. After reviewing the prosecuting attorney's response to the petition, the trial court held that the request for the writ was moot and dismissed the petition without prejudice. Flowers appeals from that order. Because the order dismissing the petition was not a final, appealable order denying relief, we dismiss the appeal.
Flowers filed the petition in his criminal case, but the appeal is not one directly arising from his conviction, and Flowers therefore has no right to appeal. Ark. R. App. P.-Crim. 1(a) (2017). For proceedings in criminal cases that are civil in nature, we look to Rule 2 of the Arkansas Rules of Appellate Procedure-Civil (2017), which lists the orders from which an appeal may be taken. See Fields v. Kelley , 2018 Ark. 39, 2018 WL 772972. Generally, for an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. An appeal is premature if the decision does not, from a practical standpoint, conclude the merits of the case. Id.
The order in this case did not discharge the parties, and it specifically dismissed Flowers's petition without prejudice. Flowers alleged in the petition that the prosecuting attorney had declined to mail his case file directly to him while he was incarcerated and instead had offered to provide access to his representative. Flowers further alleged that his wife had unsuccessfully sought to view the file. In the prosecutor's response to the petition, it was conceded that the prosecutor's office was unable to send a copy of the case file to Flowers while he was incarcerated but that a copy had recently been mailed to his wife. A copy of a return receipt was attached in support of that claim. The trial court found that, because it appeared that Flowers had received the information he sought, his request for the writ was moot.
In his brief, Flowers seems to allege that some or all of the specific materials he requested were not included with the documents that were provided to his wife. If Flowers now believes that the prosecuting attorney turned over only some of the material in his possession in response to his request, then his claim is a new one, albeit related to his first petition for the writ. Flowers is not prevented by the trial court's order from filing an additional petition for the writ indicating that the prosecuting attorney, in violation of the requirements under the FOIA, continues to withhold the documents that Flowers had requested. Flowers's relief under the circumstances is to continue to pursue an appropriate remedy in the trial court rather than through an appeal.
Appeal dismissed.
Flowers was convicted of capital murder and four counts of aggravated robbery and received an aggregate sentence of life without parole. This court affirmed the judgment. Flowers v. State , 373 Ark. 119, 282 S.W.3d 790 (2008).
This court granted Flowers's request for belated appeal in order to proceed with the appeal. | [
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SHAWN A. WOMACK, Associate Justice
Petitioner Tommy R. Mosley brings this pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in his criminal case. As the petition is without merit, and Mosley failed to act with due diligence in bringing it, the petition is dismissed. Mosley also seeks by motion to file a "noncompliant brief/response" and for extension of time. The motion is a request to file a response to the State's response to Mosley's coram nobis petition. As there is no provision in the prevailing rules of procedure to file a response to a response, and Mosley has not stated good cause to file a response to a response, the motion is denied.
I. Background
Mosley was convicted in 1995 of rape and sentenced as a habitual offender to life imprisonment. This court affirmed. Mosley v. State , 323 Ark. 244, 914 S.W.2d 731 (1996). In 1998, Mosley filed his first coram nobis petition here, which we denied. Mosley v. State , 333 Ark. 273, 968 S.W.2d 612 (1998) (per curiam). In this second petition, he alleges that (1) he was denied effective assistance of counsel; (2) he was not afforded a hearing by this court or the federal courts on his claims of ineffective assistance of counsel and thus he was unable to establish that he was actually innocent of rape; (3) the evidence adduced at trial did not support the judgment; and (4) the defense was prejudiced by the State's withholding of the victim's description of a vehicle accident that occurred on the day of the offense. The State, in addition to asserting that Mosley has failed to state a ground for the writ, also suggests that the petition should be dismissed for lack of diligence in bringing the claims approximately twenty-two years after he was convicted and approximately nineteen years after his first coram nobis petition was denied.
Mosley's petition for leave to proceed in the trial court is necessary because the trial court cannot entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal unless this court grants permission. Newman v. State , 2009 Ark. 539, 354 S.W.3d 61. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771. The writ is allowed under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38.
In making the determination of whether the writ should issue, this court looks to the reasonableness of the allegations in the petition and to the existence of the probability of the truth thereof. Id. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore , 341 Ark. 397, 17 S.W.3d 87 (2000). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Westerman v. State , 2015 Ark. 69, 456 S.W.3d 374.
II. Ineffective Assistance of Counsel
Mosley argues at length throughout the petition that he was denied effective assistance of counsel, that he has never been allowed a full hearing on his ineffective-assistance-of-counsel allegations, that he has never had the opportunity to be represented by an attorney in bringing his ineffective-assistance-of-counsel claims in state or federal court, and that the federal courts erred in ruling on his ineffective-assistance-of-counsel claims. He further argues that Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler , 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), and the progeny of those cases, dictate that he was entitled to appointment of counsel in his court challenges to his conviction on the ground of ineffective assistance of counsel. The arguments do not fit within the purview of a coram nobis action.
We have repeatedly held that ineffective-assistance-of-counsel is not a ground for the writ. Green v. State , 2016 Ark. 386, 502 S.W.3d 524 ; White v. State , 2015 Ark. 151, 460 S.W.3d 285. The United States Supreme Court's rulings in Martinez and Trevino do not pertain to coram nobis proceedings. Claims of ineffective assistance of counsel are properly raised in a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1, and a petition for writ of error coram nobis is not a substitute for that remedy. Mason v. State , 2014 Ark. 288, 436 S.W.3d 469 (per curiam). A coram nobis action is also not a means to challenge a federal court's ruling on ineffective-assistance-of-counsel claims.
III. Sufficiency of the Evidence to Sustain the Judgment
Mosley's claim that the evidence adduced at his trial was insufficient to prove that he was guilty of rape is not a ground for the writ. Challenges to the sufficiency of the evidence constitute a direct attack on the judgment and are not cognizable in a coram nobis proceeding. Grady v. State , 2017 Ark. 245, 525 S.W.3d 1. Allegations that the evidence presented at trial was not sufficient to support a finding of the defendant's guilt are issues to be addressed at trial, and, when appropriate, on the record on direct appeal. Jackson v. State , 2017 Ark. 195, 520 S.W.3d 242.
IV. Evidence Withheld by the State
It is a violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and a ground for the writ if the defense was prejudiced because the State wrongfully withheld evidence from the defense prior to trial. The Court held in Brady that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1194. There are three elements of a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene , 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). When determining whether a Brady violation has occurred, it must first be established by the petitioner that the material was available to the State prior to trial and the defense did not have it. Cloird v. State , 357 Ark. 446, 182 S.W.3d 477 (2004).
Mosley alleges that the State did not disclose prior to trial that the victim had denied that an accident had occurred to the vehicle that he was driving when he and the victim traveled to the place where the two engaged in intercourse. He contends that "Mosley's vehicle is the DNA that proves Mosley innocent" and that the "vehicle in Mosley's case disproves the underlying kidnapping." Mosley contended at trial, and on direct appeal, that the State failed to prove that the sex was not consensual. Mosley asserts that, if he could have shown that his car was dented, it would have discredited the victim's testimony, presumably about other matters. It appears that Mosley is contending that the victim did not mention the accident in her testimony until after she learned that the car had been dented and thus her testimony was shown to be unreliable. While Mosley alleges that the victim in a pretrial statement had denied that the accident happened, he does not say when he learned that the State had concealed the statement or otherwise provide any factual substantiation for the claim that it did so.
Mosley has not established a Brady violation. He has offered no support for the claim that the pretrial statement was withheld, and allegations without any factual basis to establish the Brady violation are not a ground for the writ. Id. The burden is on the petitioner in an application for a writ of coram nobis to make a full disclosure of specific facts that substantiate the merit of a Brady claim. Grady , 2017 Ark. 245, 525 S.W.3d 1.
Significantly, Mosley faults his trial attorneys for "suppression" of information about the accident and for not proffering the information to the court at trial, apparently because he considered the conflict in his and the victim's testimony about whether there was an accident to be important. The crux of the matter at issue, however, was whether Mosley forced the victim to have sex; that is, the State charged that the victim was forcibly raped, while the defense argued that the sex had been consensual. The opinion on direct appeal refers to the victim's graphic description of the act and medical testimony of her injuries, concluding that there was substantial evidence to prove forcible compulsion. Even if Mosley could have established that his car was dented at some point and the victim had denied that fact in a pretrial statement, Mosley has not established that the outcome to the proceeding with respect to whether he had committed rape would have been different. In short, the Brady claim also fails because Mosley does not establish with facts either that the State withheld the statement or that the defense suffered prejudice from the withholding of the statement. A petitioner alleging a Brady violation must be able to show that he suffered prejudice as the result of the suppression of evidence. Howard , 2012 Ark. 177, 403 S.W.3d 38.
V. Due diligence
The State is correct in its contention that Mosley has failed to exercise due diligence in bringing this second coram nobis petition. We have consistently held that due diligence is required in making an application for coram nobis relief, and in the absence of a valid excuse for delay, the petition can be denied on that basis alone. Green v. State , 2016 Ark. 386, 502 S.W.3d 524. This court will itself examine the diligence requirement and deny a petition where it is evident that a petitioner failed to proceed diligently. Roberts , 2013 Ark. 56, 425 S.W.3d 771. Due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) upon discovering the fact, the defendant did not delay bringing the petition. Scott v. State , 2017 Ark. 199, 520 S.W.3d 262.
As stated, the instant petition was brought approximately twenty-two years after Mosley was convicted and approximately nineteen years after his first coram nobis petition was denied. Even if the allegations contained in the petition had merit, Mosley offers no explanation for why he delayed in bringing the claims.
Petition dismissed; motion denied.
Hart, J., concurs.
Josephine Linker Hart, Justice, concurring.
I agree that Mr. Mosley's petition should be dismissed. I write separately because the majority's "due-diligence" finding is inconsistent with the purposes of a writ of error coram nobis. The function of the writ is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. See, e.g. , Howard v. State , 2012 Ark. 177, 403 S.W.3d 38.
I acknowledge that the State has an important interest in the finality of judgments, and, as this court has often said, error coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. Accordingly, the requirements for issuing a writ should be substantial. However, the State of Arkansas has no legitimate interest in keeping a wrongly convicted person in prison.
It is proper that the writ is issued only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. This court has held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Id. at 4, 403 S.W.3d at 42-43 (internal citations omitted). Further, the Howard court noted that [t]his court will grant permission for a petitioner to proceed in the trial court with a petition for writ of error coram nobis only when it appears the proposed attack on the judgment is meritorious. In making such a determination, we look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. Id. at 5, 403 S.W.3d at 43 (quoting Flanagan v. State , 2010 Ark. 140, at 1, 2010 WL 987049 (per curiam) ). Superimposing a requirement that the petitioner act with "due diligence" to this already dauntingly difficult burden simply does not serve justice. Finally, "due diligence" is apparently not a barrier to this court reinvesting jurisdiction in the trial court when we find an issue compelling. Consider the companion cases of Strawhacker v. State , 2016 Ark. 348, 500 S.W.3d 716, and Pitts v. State , 2016 Ark. 345, 501 S.W.3d 803, where this court reinvested jurisdiction in the trial court to consider the effect of repudiated trial testimony of FBI lab technician Michael Malone, a forensic hair analyst. When their petitions were filed in 2016, Pitts had been incarcerated since 1981 and Strawhacker since 1990.
I concur. | [
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LARRY D. VAUGHT, Judge
Rodney Chambers pled guilty to possession of a controlled substance (marijuana) with purpose to deliver, possession of drug paraphernalia, and failure to appear and received sixty months' probation by sentencing order of the Washington County Circuit Court entered on September 20, 2016. On January 11, 2017, the State filed a petition to revoke, alleging that Chambers had violated the conditions of his probation by failing to report to his probation officer, provide a valid address, and pay court-ordered financial obligations. At the conclusion of a revocation hearing, the circuit court granted the State's petition, finding Chambers had violated the conditions of his probation by failing to report to his probation officer and by failing to pay his financial obligations. The court entered a sentencing order on May 30, 2017, convicting Chambers of possession of a controlled substance (marijuana) with purpose to deliver, possession of drug paraphernalia, and failure to appear and sentenced Chambers to six years' imprisonment for each conviction, to run concurrently. On appeal, Chambers challenges the sufficiency of the evidence supporting the revocation decision. We affirm.
A circuit court may revoke a defendant's probation at any time before the expiration of the period of probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her probation. Hart v. State , 2017 Ark. App. 434, at 2-3, 530 S.W.3d 366, 368 (citing Ark. Code Ann. § 16-93-308(d) (Repl. 2016)). When the sufficiency of the evidence is challenged on appeal from an order of revocation, this court will not reverse the circuit court's decision to revoke unless it is clearly against the preponderance of the evidence. Id. at 3, 530 S.W.3d at 368. Because the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the circuit court's superior position. Id. , 530 S.W.3d at 368. Finally, the State need show that the appellant committed only one violation in order to sustain a revocation. Id. , 530 S.W.3d at 368.
In revoking Chambers's probation, the circuit court found that he had failed to report to his probation officer and had failed to pay his financial obligations. Chambers challenges both findings on appeal. Regarding his failure to report, he concedes that he missed some appointments, but he argues that he did report, he submitted to drug testing, and he maintained contact with the probation office.
Whitney Cates testified at the revocation hearing that she supervised Chambers's probation. Cates described in detail Chambers's history of reporting. She said that Chambers first appeared at the probation office for his intake (with another officer) on September 23, 2016. He returned on September 26, 2016, and met with Cates. He was scheduled to return on November 2, 2016, but did not report. Cates testified that Chambers returned to the probation office on December 6, 2016, but left without seeing Cates or any other probation officer. Cates said that she spoke with Chambers on the phone on December 12, 2016, and she requested that he report that day, but he did not report. Chambers called Cates on December 13, 2016, and arranged to report on December 14, 2016, but he did not report on that date. On December 27, 2016, Cates called Chambers, but she was unable to leave a voicemail because his phone would not receive it. Thereafter, Cates filed the probation-violation report. On January 20, 2017, Chambers left a voicemail for Cates stating that he would report on either January 27 or 28, 2017. He did not report on either date. Cates testified that Chambers was arrested for his probation violation on February 2, 2017, and released on February 11, 2017, yet Cates had received no communication from Chambers.
Based on this evidence, we cannot say that the circuit court's revocation decision based on the finding that Chambers failed to report to his probation officer was clearly against the preponderance of the evidence. The evidence establishes that from September 26, 2016, to May 30, 2017 (the date of the revocation hearing), Chambers met with his probation officer one time-at his initial visit with Cates on September 26, 2016. Chambers never met again with Cates or any other probation officer. While arrangements were made multiple times for Chambers to report on later dates, he did not report. Therefore, we affirm the circuit court's revocation decision.
Affirmed.
Abramson and Hixson, JJ., agree.
Because the State need show that the appellant committed only one violation in order to sustain a revocation, we decline to address the other basis for the court's revocation. Hart , 2017 Ark. App. 434, at 4, 530 S.W.3d at 368. | [
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BRANDON J. HARRISON, Judge
Marion Segars worked for Kiswire Pine Bluff, Inc., for twenty-five years before he filed a claim for a workplace injury. The claims process began on 4 November 2015, when Segars was testing a wire inside a test tube, fumbled the tube, and felt his arm pop while trying to save the tube from falling to the ground. He immediately reported the incident to his employer and received an x-ray the same day, which showed no acute injuries. A November 25 MRI showed a large rotator cuff defect, or full-thickness tear, in the infraspinatus tendon segment with retraction of the infraspinatus tendon. Dr. Bowen, the surgeon who repaired Segars's right shoulder, wrote, "I presume that since he [Segars] had no symptoms in his shoulder prior to his [November 4] injury that this was causative and is the reason for his current shoulder problem."
Segars had some prior issues with both shoulders. Dr. Bowen successfully repaired a left rotator-cuff injury two and a half years before the alleged workplace injury to his right shoulder. Segars's medical records revealed that in April 2013 he had complained to Dr. Bowen about pain in his right shoulder. Dr. Bowen noted that Segars might have a degenerative rotator-cuff tear in the right shoulder, that he had rejected treatment at that time, and that an MRI may be warranted if Segars's symptoms continued. By June 2013, Segars's right shoulder was reportedly "much better," and he did not seek further medical attention before the November 4 injury. Segars testified during the administrative hearing that his right shoulder was asymptomatic during this time. It is undisputed that Segars was taking prescription pain medication for unrelated chronic back pain when the November 4 workplace injury occurred. It is also undisputed that the only MRI of Segars's right shoulder was performed on 25 November 2015, which happened after the alleged workplace injury.
The administrative law judge found that Segars failed to prove a compensable right-shoulder injury. Reversing the law judge, the Arkansas Workers' Compensation Commission (Commission) found that Segars injured his right shoulder on 4 November 2015 while performing employment services. It cited the rotator-cuff tear on the November 25 MRI as objective evidence of the injury. After some discussion, the Commission credited Dr. Bowen's statement that the work-related incident caused the shoulder injury. It also awarded him temporary total-disability (TTD) benefits from 3 January 2016 to 20 September 2016. Kiswire, Pine Bluff Inc., and its insurance carrier Travelers Indemnity Co. (collectively Kiswire), challenge the Commission's decision. They argue that the Commission erred as a matter of law when it awarded medical benefits and TTD benefits. Kiswire also argues that the Commission's decision to award benefits is not supported by substantial evidence.
I. Medical Benefits Award
The Commission determines credibility, weighs the evidence, and resolves conflicts in medical testimony and evidence. Godwin v. Garland Cty. Landfill , 2016 Ark. App. 498, at 4, 504 S.W.3d 660, 662. We review the Commission's decision in the light most favorable to its findings and affirm when the decision is supported by substantial evidence. Parker v. Atl. Research Corp. , 87 Ark. App. 145, 189 S.W.3d 449 (2004). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission: if so, we must affirm. Parker v. Comcast Cable Corp. , 100 Ark. App. 400, 269 S.W.3d 391 (2007).
A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2017). "Objective findings" cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). There is no requirement that medical testimony be based solely or expressly on objective findings, only that the record contain supporting objective findings. Singleton v. City of Pine Bluff , 97 Ark. App. 59, 60, 244 S.W.3d 709, 711 (2006).
To prove a specific-incident injury, the claimant must establish that the injury was one "arising out of and in the course of employment." Ark. Code Ann. § 11-9-102(4)(A)(ii)(Repl. 2017). In Freeman v. Con-Agra Frozen Foods , our supreme court explained the causation requirement this way:
This court has never required that a doctor be absolute in an opinion or that the magic words "within a reasonable degree of medical certainty" even be used by the doctor. Rather, this court has simply held that the medical opinion be more than speculation. For example, in Howell v. Scroll Technologies , 343 Ark. 297, 35 S.W.3d 800 (2001), the opining doctor stated that his patient's exposure at work to a coolant mist was at least fifty-one percent the cause of her respiratory problems. We held that that opinion fell within the standard of a reasonable degree of medical certainty. Accordingly, if the doctor renders an opinion about causation with language that goes beyond possibilities and establishes that work was the reasonable cause of the injury, this should pass muster.
Freeman v. Con-Agra Frozen Foods , 344 Ark. 296, 303, 40 S.W.3d 760, 765 (2001).
An employer takes an employee as it finds him, and employment circumstances that aggravate preexisting conditions are compensable. Heritage Baptist Temple v. Robison , 82 Ark. App. 460, 120 S.W.3d 150 (2003). When a workplace injury aggravates a preexisting condition, then the aggravating injury is compensable. Oliver v. Guardsmark, Inc. , 68 Ark. App. 24, 3 S.W.3d 336 (1999). Of course, because an aggravation is itself a new injury with an independent cause, the alleged aggravating injury must itself meet the requirements for a compensable injury. Ford v. Chemipulp Process, Inc. , 63 Ark. App. 260, 977 S.W.2d 5 (1998).
Kiswire argues that the Commission did not identify any objective medical findings of a new injury (an aggravation) of Segars's preexisting right-shoulder condition. Kiswire believes the Commission acted unreasonably when it credited Dr. Bowen's causation statement because he incorrectly recited that Segars never had right-shoulder pain before he fumbled the test tube at work. In other words, Kiswire believes that Dr. Bowen's medical opinion on causation lacked the certainty that Arkansas law requires.
Here is what the Commission wrote on this point:
A review of the medical records reveals that there are no complaints of right shoulder pain after the single complaint on April 30, 2013. In his visits to his family doctor, Dr. Tracy Phillips, in 2014 and 2015, the claimant's only complaints of pain were for chronic back pain and an ingrown toenail. Dr. Phillips referred the claimant to the care of Dr. Christopher Mocek, a pain management doctor, for care of his chronic back pain. At his initial visit with Dr. Mocek on July 22, 2015, there is no record of the claimant complaining of right shoulder pain and the report of that date states regarding the musculoskeletal system, "[p]atient denies muscle weakness, muscle pain, joint stiffness, joint pain, range of motion, swelling, arthritis." The claimant saw Dr. Mocek on October 23, 2015 and, again, there is no mention of any pain or problems with his right shoulder.
Consistent with the medical evidence, the claimant testified that after the transient pain he had in early 2013 resolved, he did not have any right shoulder pain until the work incident on November 4, 2015. After the short-lived problem with his right shoulder in 2013, the claimant continued to work for the respondent-employer, working twelve-hour shifts. Therefore, based on these facts, we find that Dr. Bowen's opinion regarding causation is credible despite the statement that the claimant had never had right shoulder pain.
We affirm the Commission's decision. Kiswire correctly notes that our supreme court has held that "expert opinions based upon 'could,' 'may,' or 'possibly' lack the definiteness required to meet the claimant's burden to prove causation pursuant to § 11-9-102(16)(B)." Frances v. Gaylord Container Corp. , 341 Ark. 527, 533, 20 S.W.3d 280, 284 (2000). See also Freeman , supra. But in those cases a medical doctor was asked to give a medical conclusion on causation in the form of a letter opinion. That was not the case here. Moreover, medical-opinion testimony is not essential to establish the causal relationship between the injury and a work-related accident. Wal-Mart Stores, Inc. v. VanWagner , 337 Ark. 443, 447, 990 S.W.2d 522, 524 (1999). The possible causes for work-related injuries include many that can be established by common-sense observation and deduction. Id. Unlike Kiswire, we do not read the Commission's opinion as solely relying on Dr. Bowen's statement. The doctor's clinical notes were just some of the evidence the Commission used to decide whether Segars's shoulder injury was work related.
The Commission was entitled to interpret the medical records. It gave more weight to Dr. Bowen's statement in 2015 that "I presume that since [Segars] had no symptoms in his shoulder prior to his [November 4] injury that this was causative and is the reason for his current shoulder problem" over his 2013 office notes in which he had an unconfirmed suspicion or concern that Segars might have a degenerative rotator-cuff tear in his right shoulder.
Some evidence suggested that Segars had a preexisting right-shoulder condition. But contrary to Kiswire's view, the Commission never found, as a matter of fact, that Segars had a preexisting right-shoulder condition. The evidence of a preexisting right-shoulder condition was that, in 2013, Segars reported to Dr. Bowen a one-time transient pain in his right shoulder; but he did not seek further treatment on that shoulder from Dr. Bowen, or any other practitioner. It was better by the next visit with Dr. Bowen. Segars also testified that he was asymptomatic and continued to work twelve-hour shifts at his job until the November 4 injury. Shortly after the November 4 incident, an MRI and related operative note showed that Segars had suffered an acute injury (tear) in his right shoulder, which is an objective finding. That the Commission identified Segars's prior left-shoulder surgery and ongoing lower-back pain, but did not conclude that he had an identifiable preexisting injury to his right shoulder before November 4, was a question of fact that the Commission could resolve in Segars's favor.
We hold that reasonable minds could have reached the Commission's conclusion and therefore affirm its decision that Segars suffered a compensable workplace injury on November 4.
II. TTD Benefits
In between the November 4 injury and his surgery on January 13, Segars worked light duty in a sling for a short time; he was later taken off work because his job duties did not fit within his restrictions. After the January 13 surgery on his right shoulder, Segars was still not working. Records from Dr. Bowen indicate that he released Segars for light-duty work on April 7 with restrictions to "see how he does," and the doctor removed Segars from working on April 25 until his next appointment. While not crystal clear, it appears that Segars exhausted his Family and Medical Leave Act (FMLA) time, and his employment was terminated on 4 May 2016. He returned to Dr. Bowen for an appointment in September 2016. Segars testified during the administrative hearing that his shoulder had healed somewhat, but he was still not able to work a full twelve-hour shift due to his shoulder pain. During his deposition he admitted to not working anywhere since his employment with Kiswire ended.
A 20 September 2016 report mentions some pain relief and improved range of motion but continuing night pain and catching in the right shoulder. The September report notes weakness and decreased range of motion. In the report, Dr. Bowen advised that Segars may need periodic injections, repeat MRI scans, and a reverse shoulder replacement.
A TTD occurs when a claimant is within his or her healing period and suffers a total incapacity to earn wages. The healing period continues until the employee is restored as much as the permanent character of his or her injury will permit; the healing period ends when the underlying condition that caused the disability is stabilized and no additional treatment will improve the condition. Farmers Coop. v. Biles , 77 Ark. App. 1, 5, 69 S.W.3d 899, 902 (2002). The Commission determines as a matter of fact when the healing period has ended. Its decision will be affirmed on appeal if supported by substantial evidence. Id. The claimant's "failure to return to work must be causally related to the injury." Fendley v. Pea Ridge Sch. Dist. , 97 Ark. App. 214, 216-17, 245 S.W.3d 676, 677-78 (2006).
Here is what the Commission wrote as the basis for its TTD award:
In the present matter, the Full Commission has found that the claimant proved he sustained a compensable injury to his right shoulder on November 4, 2015. The claimant suffered a torn rotator cuff in his right shoulder. The claimant underwent surgery on January 13, 2016, and was removed from work. On April 7, 2016, Dr. Bowen released the claimant to return to work Monday, April 11, 2016, on light duty with the permanent restrictions of lifting up to his waist no more than 5 pounds on an occasional basis and no lifting his arms above his shoulder for any significant period of time. The claimant explained in his testimony that the respondent-employer considered his regular job a light duty position. However, the claimant's job duties did not fit within his permanent restrictions. Because the claimant was unable to perform his job, Dr. Bowen removed the claimant from work on April 25, 2016 "until next appt." The claimant returned to Dr. Bowen for his next appointment on September 20, 2016. There are no additional work excuses from September 20, 2016 or any subsequent dates. Therefore, we find that the claimant proved he is entitled to temporary total disability benefits from January 13, 2016 through September 20, 2016.
Segars's testimony and the medical records support the Commission's finding that Segars remained in his healing period until 20 September 2016. Segars presented proof that his workplace injury, and the resulting surgical treatment, rendered him unable to perform any form of work for Kiswire within the restrictions set by Dr. Bowen. Dr. Bowen opined that Segars should remain off work until "his next appointment." The record shows that the next appointment was on 20 September 2016. We therefore hold that substantial evidence existed to support the Commission's TTD award.
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This timely appeal followed.
I. Amendment
Appellants' first argument on appeal is that the circuit court erred as a matter of law in refusing to amend the pleadings to conform to the evidence, evidence which was received without objection. We affirm.
We will not reverse a circuit court's decision regarding the amendment of pleadings to conform to the evidence in the absence of a manifest abuse of discretion. A manifest abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Arkansas Rule of Civil Procedure 15(b) governs the amendment of pleadings to conform to the evidence:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant a continuance to enable the objecting party to meet such evidence.
Thus, absent express or implied consent, the question of whether pleadings may be amended to conform to the evidence is within the sound discretion of the circuit court. This rule is liberal in its allowance of amendments to conform pleadings to proof and even contemplates an amendment after judgment.
A party should be allowed to amend absent prejudice; an important consideration in determining prejudice is whether the party opposing the motion will have fair opportunity to defend after the amendment. If the opposing party timely objects to the amendment, the circuit court determines whether prejudice would result, or if the case would be unduly delayed by the amendment. The failure of the opposing party to seek a continuance is a factor to be considered in determining whether prejudice was shown. However, we will not imply consent to conforming the pleadings to the proof merely because evidence relevant to a properly pled issue incidentally tends to establish an unpled one.
Dates are key to the statute of limitations as dates determine when the time to file a claim had ended. In this case, the discussion revolved around ownership of scrap that was sold by appellants, which belonged to Leon and was sold both from land owned by Joshua and Leon as joint tenants and separate land owned by Leon's brother. The outcome of this matter, as argued, turned on when Joshua should have been determined to be dead as that date would determine, as the arguments went, who owned the scrap and, therefore, who owned the proceeds. Throughout multiple filings and a hearing, appellants never made a statute-of-limitations argument, instead addressing Jennifer's arguments as presented. It was not until the very end of the trial that appellants mentioned an issue with the statute of limitations for the first time. The issue of the statute of limitations was not tried on the evidence, there was simply evidence presented that would incidentally establish the unpled issue of statute of limitations. Accordingly, Jennifer never impliedly consented to arguing the issue of the statute of limitations.
At the time of the motion to amend, Jennifer objected. She argued that appellants could not amend their pleadings to raise an affirmative defense as they are required to be pled by the Arkansas Rules of Civil Procedure. Though she did not use some variation of the word 'object,' it is clear that Jennifer was objecting, and she gave a specific reason. Arkansas Rule of Civil Procedure 8(c) lists statute of limitations as an affirmative defense that must be pled in response to a complaint. Appellants failed not only to list this affirmative defense in their response to Jennifer's complaint, but they also failed to raise it throughout the pendency of the case, raising it for the first time at the end of the trial. While the fact that Jennifer failed to ask for a continuance is a factor, it is not a determining factor and the circuit court's letter to the parties makes clear that its decision was not "exercised thoughtlessly and without due consideration." The decision to grant a motion to amend, while liberal, is still discretionary; amendment is only mandatory when the issue has been expressly or impliedly consented to. We hold that there was no manifest abuse of discretion by the circuit court in denying appellants' motion to amend the pleadings.
II. Standing
Appellant's second argument on appeal is that the circuit court erred in permitting Joshua's estate to pursue a claim that belonged to Leon's estate. It is clear that appellants did not raise the issue of standing prior to the hearing after the trial, and that Jennifer never raised the issue. Furthermore, appellants did not attempt to amend the pleadings to conform to the alleged evidence of standing until October 24, 2016, eighteen months after the complaint was filed, ten months after the trial on the matter, and three months after the judgment was entered. It is clear that the issue of standing was not expressly or impliedly consented to, and again, Jennifer objected to conforming the pleadings to allege standing, despite failing to ask for a continuance, which is but a factor. Accordingly, based on the same analysis above, we affirm.
Affirmed.
Abramson, Harrison, and Glover, JJ., agree.
Klappenbach and Murphy, JJ., dissent.
Jennifer filed a notice of cross-appeal but did not file a brief; therefore, she has abandoned any potential argument she may have had before this court.
Cross v. Cross , 2016 Ark. App. 327, at 6, 497 S.W.3d 712, 717 (citing Ison Props., LLC v. Wood , 85 Ark. App. 443, 156 S.W.3d 742 (2004) ).
Gilbow v. Crawford , 2015 Ark. App. 194, at 6, 458 S.W.3d 750, 754 (citing Entertainer, Inc. v. Duffy , 2012 Ark. 202, 407 S.W.3d 514 ).
Honeycutt v. Honeycutt , 2017 Ark. App. 113, at 4, 516 S.W.3d 750, 753 (citing Pineview Farms, Inc. v. A.O. Smith Harvestore, Inc. , 298 Ark. 78, 85-86, 765 S.W.2d 924, 928 (1989) ).
Gregory v. Gregory , 2013 Ark. App. 57, at 7, 425 S.W.3d 845, 849-50 (citing Hope v. Hope , 333 Ark. 324, 969 S.W.2d 633 (1998) ).
Honeycutt, supra.
Gregory , 2013 Ark. App. 57, at 7, 425 S.W.3d at 849 (citing Webb v. Workers' Comp. Comm'n, 286 Ark. 399, 692 S.W.2d 233 (1985) ).
Gregory , 2013 Ark. App. 57, at 7, 425 S.W.3d at 850 (citing Hope, supra ).
McEntire v. Watkins , 73 Ark. App. 449, 451, 43 S.W.3d 770, 771-72 (2001) (citing Heartland Cmty. Bank v. Holt , 68 Ark. App. 30, 3 S.W.3d 694 (1999) ).
Though appellants never raised a statute-of-limitations defense to Jennifer's claim, Jennifer did raise a statute-of-limitations defense in her May 11, 2015 answer. However, the issue was not contested and was more so abandoned in that the evidence presented was not for the purpose of arguing the statute-of-limitations defense but incidental to Jennifer's ownership claim. | [
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JOHN DAN KEMP, Chief Justice
Appellant Ivory Joe Love appeals the dismissal by the circuit court of his petition for writ of habeas corpus. Now before us is Love's motion for an extension of time to file his brief-in-chief. As there was clearly no ground stated in the petition on which a writ of habeas corpus could be issued, the appeal is dismissed, and the motion is moot. A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon , 2014 Ark. 225, 434 S.W.3d 364. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. An appeal from an order that denied a petition for postconviction relief, including a petition for writ of habeas corpus, will not be permitted to go forward when it is clear that the appellant could not prevail. See Green v. State , 2016 Ark. 386, 502 S.W.3d 524.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Baker v. Norris , 369 Ark. 405, 255 S.W.3d 466 (2007). A circuit court has subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes. Id. Under our statute, a petitioner for the writ who does not allege his or her actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that the petitioner is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs , 2013 Ark. 416, 2013 WL 5775566.
Love, who entered a plea of guilty in 1995 to first-degree murder and was sentenced to life imprisonment, argued in his habeas petition that the writ should issue because it was his understanding at the time of the plea that he would be sentenced to thirty-two years' imprisonment. Love did not contend that the sentence imposed was outside the statutory range for the offense or otherwise make a showing that he was being illegally detained, and he offered no facts to support his conclusory assertion that the trial court was without jurisdiction to enter the judgment.
Love's petition was an attack on the guilty plea that he entered in 1995, and a petition challenging a plea of guilty must be filed pursuant to our postconviction rule, Arkansas Rule of Criminal Procedure 37.1 (1995). See Webb v. State , 365 Ark. 22, 223 S.W.3d 796 (2006). The writ will not be issued to correct errors or irregularities that occurred in a guilty-plea proceeding. Barber v. Kelley , 2017 Ark. 214, 2017 WL 2473267. A habeas corpus proceeding is not a substitute for filing a timely petition for postconviction relief under the Rule. Noble v. Norris , 368 Ark. 69, 243 S.W.3d 260 (2006).
Appeal dismissed; motion moot.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
Mr. Love has not yet perfected his appeal, so this court's jurisdiction is limited to hearing his motion for an extension of time to file his brief. Accordingly, while it is permissible for this court to dismiss Mr. Muldrow's appeal because he did not timely file his brief, it is most certainly not proper to "dismiss" his appeal on the merits and declare the motion "moot."
I dissent. | [
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On April 10, 2017, Taff was charged with one count of simultaneous possession and one count of possession of controlled substance schedules I, II with intent to deliver. He filed a motion to suppress physical evidence on August 25, 2017, arguing that law enforcement officers had illegally detained him. A hearing was held on Taff's motion on October 24, 2017, during which Officer Davis testified that he had known Lee-who called in the report to dispatch-for fifteen years and that Lee was reliable and not easily alarmed. Officer Davis testified that he pulled over to make contact with Taff to "investigate suspicious behavior" and "to see what was going on" in order to "protect the community." Officer Davis acknowledged that he did not see Taff commit any traffic violations or criminal acts before initiating his blue lights.
With respect to the stop, Officer Davis explained that when he pulled in behind Taff, Taff "didn't act like he wanted to be talked to or anything to that matter." Officer Davis acknowledged that the mere possession of a gun is not a crime, but he also testified that he was concerned that after "[s]eeing the outline of the pistol," he felt that Taff "could possibly pull his weapon and do harm to Deputy Bartell or him."
On cross-examination, Officer Davis specifically denied that he was investigating a crime when he initiated his blue lights:
COUNSEL : When you activated your blue lights on 270 to stop Mr. Taff, were you investigating a crime?
CHAD DAVIS : No, sir, it was a suspicious person, the way he was acting.
Officer Davis confirmed that the information he received about Taff's behavior in the store did not involve the commission of any crime; any threats made by Taff; any theft of property by Taff; any brandishing of a weapon by Taff; any mention that Taff had any unlawful intent with the pistol; or any mention that Taff was getting physical with anyone. Further, he acknowledged that he later heard on the second call from dispatch that Taff had left the vicinity of the store and was walking along Highway 270 away from the store and toward the county line. Officer Davis acknowledged that Taff had walked approximately two miles by the time he first encountered Taff about twelve minutes after the initial dispatch message.
After Officer Davis testified, Taff argued that he was seized for purposes of the Fourth Amendment when Officer Davis initiated his blue lights. Taff asserted that Officer Davis lacked reasonable suspicion under Arkansas Rule of Criminal Procedure 3.1 (2017) that Taff was committing or had committed a crime to justify the seizure. Taff acknowledged that Officer Davis "could have conducted a consensual encounter and asked [Taff] to speak to them," but he argued that instead, Officer Davis "seized him absent reasonable suspicion."
In response, the State reiterated that Officer Davis initiated contact with Taff to determine the lawfulness of his behavior after hearing from a reliable source that Taff had acted suspiciously at the Joplin Store, had gone in and out of the store several times, and had been carrying a gun. The circuit court found that once Officer Davis activated his blue lights, "it would not have been unreasonable for [Taff] to feel that he was not free to leave." The circuit court further found that under such circumstances, Officer Davis would have needed reasonable suspicion under Rule 3.1 to detain Taff but that based on the totality of the circumstances, "it was certainly not unreasonable for the officer to detain [Taff] for the purpose of verifying his identification and to determine the lawfulness of his conduct." The circuit court denied Taff's motion to suppress.
On January 23, 2018, Taff entered a conditional plea to both charges pursuant to Rule 24.3(b)(i), which was approved by the circuit court. Taff was sentenced to fifteen years on each count to be served concurrently pursuant to a sentencing order filed on January 23, 2018. Taff filed a timely notice of appeal on the same date, and this appeal followed.
II. Standard of Review and Applicable Case Law
In reviewing a circuit court's denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause. See Meeks v. State , 2016 Ark. App. 9, at 3, 479 S.W.3d 559, 561. This court will reverse only if the circuit court's ruling was clearly against the preponderance of the evidence. Id.
Both the federal and Arkansas constitutions prohibit unreasonable searches or seizures not supported by probable cause or reasonable suspicion. See U.S. Const. amend. 4 ; Ark. Const. art. 2, § 15. Arkansas appellate courts have held that a person is "seized" for purposes of the Fourth Amendment when law enforcement effectuate a stop by using their blue lights. See Hammons v. State , 327 Ark. 520, 940 S.W.2d 424 (1997) ; State v. McFadden , 327 Ark. 16, 938 S.W.2d 797 (1997) ; Meeks , 2016 Ark. App. 9, at 4, 479 S.W.3d at 561 ; Stevens v. State , 91 Ark. App. 114, 208 S.W.3d 843 (2005).
Rule 3.1 authorizes a police officer to stop and detain any person whom he reasonably suspects is committing, has committed, or is about to commit a felony or a misdemeanor involving danger of forcible injury to people or property. Meeks , 2016 Ark. App. 9, at 5, 479 S.W.3d at 562. Further, a police officer is justified in making a traffic stop if the officer has probable cause to believe that the vehicle has violated a traffic law. See Whren v. United States , 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ; Sims v. State , 356 Ark. 507, 157 S.W.3d 530 (2004). Before an officer can use blue lights to stop someone, the officer must have reasonable suspicion that the person committed a felony or dangerous misdemeanor, or probable cause to believe the person committed a traffic violation. Meeks , 2016 Ark. App. 9, at 5, 479 S.W.3d at 562.
III. Discussion
Taff argues that pursuant to Arkansas law and based on Officer Davis's testimony, law enforcement officers lacked the reasonable suspicion necessary to conduct the initial seizure by initiating blue lights. He asks this court to determine whether the mere possession of a pistol in his waistband constituted reasonable suspicion sufficient to seize him pursuant to Rule 3.1.
Taff submits that he was seized by law enforcement while simply walking along a public road, obeying the law, and committing neither traffic nor other criminal violations. Taff argues that bare allegations that an individual acted "suspiciously" or "funny" are not proper bases to seize someone under the Fourth Amendment to the United States Constitution, which requires articulable facts. See United States v. Monsivais , 848 F.3d 353 (5th Cir. 2017) ; see also Sims , supra. Taff contends that the seizure, which occurred when officers effectuated a stop by using blue lights, was illegal because it was absent probable cause to believe there was the commission of a traffic violation or reasonable suspicion of any crime. Accordingly, Taff argues that all items recovered pursuant to the subsequent search of his person were fruits of the poisonous tree that must be suppressed. See Wong Sun v. United States , 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ; Keenom v. State , 349 Ark. 381, 80 S.W.3d 743 (2002).
We find no merit in the State's argument that, pursuant to Rule 3.1, Taff was not "seized" when Officer Davis initiated his blue lights because Taff did not submit to the show of authority. The State cites California v. Hodari D. , 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ; Smith v. State , 343 Ark. 552, 39 S.W.3d 739 (2001) ; and Stewart v. State , 42 Ark. App. 28, 853 S.W.2d 286 (1993), in an attempt to distinguish these facts from the previously cited "blue-light" seizure cases, arguing that Taff did not submit to the officers' show of authority. The record indicates that, upon becoming aware of the blue lights behind him, Taff turned to look back, shook his head, and took a couple of steps before turning and stopping in front of the officer's vehicle. There is no indication that Taff attempted to flee as in Hodari or Stewart or even kept walking at his normal pace; rather, he did stop and face the officers in an affirmative showing of submission to the blue lights. While we acknowledge that Taff then put his hand in his left pants pocket, which led Officer Davis to draw his weapon in anticipation of Taff reaching for his gun, the illegal seizure had already occurred the moment the officers engaged their patrol cruiser's blue lights and approached him on the side of the highway. Accordingly, we hold that the circuit court correctly found that it was reasonable that Taff would not have felt free to leave once the officers initiated the blue lights, see, e.g. , Hammons , supra ; McFadden , supra ; Meeks , supra ; Stevens , supra ; accordingly, the officers were required to have reasonable suspicion to justify the seizure.
Under Rule 3.1, a law enforcement officer may "stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property." " 'Reasonable suspicion' means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion." Ark. R. Crim. P. 2.1 (2017). An officer has reasonable suspicion under the totality of the circumstances when the officer has specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity. E.g. , James v. State , 2012 Ark. App. 118, at 6-7, 390 S.W.3d 95, 99.
The State notes that this court has explained that with respect to Rule 3.1, "the key word is 'suspects,' and reasonable suspicion does not require that an officer 'rule out the possibility of innocent conduct.' " Casey v. State , 2016 Ark. App. 98, at 7, 483 S.W.3d 327, 331. In determining whether an officer had reasonable suspicion, courts recognize that "when used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion." Mosley v. State , 2009 Ark. App. 799, at 7, 370 S.W.3d 273, 277.
But here, by Officer Davis's own testimony, he was not investigating a crime at the time he engaged the blue lights. Taff was not suspected of having committed either a crime or a traffic violation. There was no conduct by him that the officers needed to determine the lawfulness of because the officers lacked any reasonable suspicion of the commission ofa crime. See Ark. R. Crim. P. 3.1. Merely "acting suspicious" does not equate to reasonable suspicion under either the Fourth Amendment or Arkansas law.
The State argued that Officer Davis seized Taff because he "had to determine the lawfulness of [Taff's] conduct going in and out of the store and carrying that weapon and acting suspiciously." Merely possessing a weapon is not a crime in the State of Arkansas. See Ark. Code Ann. § 5-73-120(a) (providing that "[a] person commits the offense of carrying a weapon if he or she possesses a handgun ... on or about his person ... with a purpose to attempt to unlawfully employ the handgun ... as a weapon against a person"); see also Op. Ark. Att'y No. 064 (2015) ("[I]n general merely possessing a handgun on your person ... does not violate § 5-73-120(a) and may be done if it does not violate other laws or regulations."). Under the clear language of section 5-73-120(a), the possessor of a handgun must have an unlawful intent to employ it as a weapon against a person in order to make that possession a criminal act. Under the rule of lenity, any doubts as to the interpretation of a criminal statute are resolved in favor of the defendant. See Williams v. State , 364 Ark. 203, 208, 217 S.W.3d 817, 819-20 (2005).
There is nothing in the record before us to indicate that Taff demonstrated any sort of unlawful intent with the weapon prior to the engagement of the blue lights-such as threatening someone at the store or brandishing the weapon-that would have given officers reasonable suspicion of a crime sufficient to effectuate the stop with the blue lights. To the contrary, Officer Davis's testimony was clear that there were no indicators of unlawful activity or intent and that he had no information that would have indicated Taff's possession of a gun was unlawful.
Moreover, the fact that Taff had walked two miles away from the store and was on his way out of the county at the time of his encounter with officers is evidence that supports his intent to leave Montgomery County rather than to commit a crime within its borders.
We hold that under the totality of the circumstances, the officers' effectuation of a stop with blue lights without reasonable suspicion constituted an illegal seizure, and the circuit court's denial of Taff's motion to suppress all physical evidence stemming from the initial seizure of his person was against the preponderance of the evidence. Because the seizure was illegal and unconstitutional, all evidence seized as a result of this initial illegality should have been suppressed. Accordingly, we reverse and remand for a new trial.
Reversed and remanded.
Abramson and Murphy, JJ., agree. | [
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DAVID M. GLOVER, Judge
This is an appeal from a decree of divorce that the Circuit Court of Pulaski County entered on March 15, 2017. The appellant, Dean Goodson, raises ten points on appeal that challenge the circuit court's rulings on visitation, spousal support, division of marital property, attorney's fees, and the admission of evidence. He also alleges the appellee, Sharon Bennett, failed to properly serve him with the summons and complaint for divorce. Because several of these issues are not preserved for appellate review, and those that are preserved are without merit, we affirm the decree.
I. Factual Background
Sharon Bennett and Dean Goodson were married on June 7, 2009. They have one son, T.G., who is five years old. Goodson also has an eleven-year-old daughter, S.G., from a previous relationship with Mollie Yoder.
Bennett filed a complaint for divorce and a petition for an order of protection on July 14, 2015, following a domestic-abuse incident that occurred two days earlier, on July 12, 2015. Goodson attacked Bennett with such force that he damaged her jaw and ruptured one of her eardrums. Goodson's children, S.G. and T.G., were in the home during the attack. After a hearing on August 3, 2015, the circuit court entered an order of protection that granted Bennett sole custody of T.G. and prohibited Goodson from having any contact with Bennett or T.G. for ten years. The circuit court also entered a ten-year order of protection on the petition of Mollie Yoder, who requested it for herself based on Goodson's conduct during their relationship, as well as for S.G., who was present in the home during Goodson's brutal attack on Bennett. Goodson did not file any appeal from the two ten-year orders of protection.
Goodson filed an answer and counterclaim for divorce on August 17, 2015, as well as an amended counterclaim on July 29, 2016. Among other things, Goodson's counterclaim sought joint custody of T.G. A month later, on September 17, 2015, Goodson filed a motion to stay the final hearing until after the resolution of the criminal charges related to his attack on Bennett. Goodson argued the stay was warranted because his outstanding criminal charges would force him to invoke his Fifth Amendment right against self-incrimination during the divorce proceedings, leaving him unable to adequately litigate custody and visitation of T.G. In an order entered on November 9, 2015, the circuit court denied the motion to stay the final hearing but agreed to reserve "matters regarding custody and visitation" of T.G. until after the conclusion of the criminal case. Goodson later withdrew his request to reserve the determination of custody and visitation, however, after the criminal case was continued indefinitely.
The final divorce hearing was set for August 31 and September 1, 2016. Goodson obtained new counsel, who entered their appearance on July 20, 2016. Goodson simultaneously sought a continuance, alleging his new counsel had scheduling conflicts with the scheduled trial dates. Goodson also alleged a continuance was warranted because he "[had] criminal charges pending which would prohibit him from testifying to material issues in [the] matter," and consequently, he would "be unable to adequately defend himself, the minor child, and the marital estate." The circuit court denied the motion for a continuance after a telephonic hearing that occurred on July 21.
The case proceeded to a two-day final hearing as scheduled on August 31 and September 1. In addition to the physical and emotional abuse that she suffered during the marriage, Bennett testified about the couple's interests in their tree-trimming operation, Giraffe Tree Service, and its associated business, Giraffe Financial. Goodson owned Giraffe Tree Service prior to their marriage in 2009, and Giraffe Financial was a payroll service created, in part, to protect Goodson's income from Ms. Yoder's claims for increases in child support. Bennett testified that, at Goodson's instruction, she regularly "moved money between Giraffe Tree and Giraffe Financial," to "pay [her]self," as well as to "to keep the child support down" because "[Goodson] didn't feel that he should be paying that amount in support." According to Bennett, Goodson also gave her a "blanket authorization" to sign checks, insurance claims, and other documents associated with the businesses.
Bennett further explained that both she and Goodson used money from the Giraffe business accounts, as well as a $25,000 insurance loan, for various personal items, including guns, ammunition, horses, and jewelry. The couple also kept large amounts of cash in their home, including $50,000 that was in a Browning safe in their garage when they separated in July 2015.
In addition, Bennett testified about her infidelity, admitting having had affairs with two men during the marriage. She acknowledged she lent $2500 to one of her paramours and paid for the hotel rooms where the affairs took place. She also claimed she disclosed the affairs to Goodson as they underwent marriage counseling toward the end of their marriage.
Goodson invoked his Fifth Amendment right against self-incrimination during the final hearing, choosing instead to make his case through his cross-examination of Bennett and his own witnesses. Through cross-examination and the testimony of his financial expert, Timothy Ridge, Goodson attempted to demonstrate that Bennett made several fraudulent transactions with money from Giraffe Tree Service, and that she alone was responsible for the couple's failure to file income-tax returns during their marriage. Goodson also attempted to demonstrate that he was suitable for strictly supervised visitation with T.G. through the testimony of his stepmother, Betty Goodson, and a psychologist, Dr. Dawn Doray.
On March 15, 2017, the circuit court entered a decree granting Bennett a divorce and awarding her attorney's fees and costs. The circuit court subsequently entered a separate order setting the amount of the fee and cost award at $30,000. Goodson now appeals those orders.
II. Issues on Appeal
Goodson argues that reversal of the decree is warranted because (1) he was not served with the complaint and summons in accordance with Rule 4 of the Arkansas Rules of Civil Procedure ; (2) the circuit court failed to exercise discretion or utilize any analysis under Arkansas Code Annotated 9-13-101 when it denied Goodson visitation with his minor son; (3) the circuit court abused its discretion by denying Goodson's motion for a continuance; (4) the circuit court abused its discretion when it admitted the transcript of a hearing on a petition for an order of protection; (5) the circuit court unequally divided the marital assets without making the findings required by Arkansas Code Annotated 9-12-315 ; (6) the circuit court erred when it awarded spousal support without analyzing the parties' financial needs, ability to pay, and other relevant factors; (7) the circuit court erred in awarding attorneys' fees to the appellee, Sharon Bennett; (8) the circuit court erred by not allowing Goodson to impeach Bennett's credibility; (9) the circuit court erred by denying Goodson's motion to reopen the record based on newly-discovered evidence; and (10) the circuit court's errors cumulatively denied Goodson a fair trial.
III. Standards of Review
This court generally reviews domestic-relations cases de novo, see Berry v. Berry , 2017 Ark. App. 145, at 2, 515 S.W.3d 164, 166, but applies the abuse-of-discretion standard to the circuit court's decisions denying motions for continuance, see James v. Arkansas Dept. of Human Servs. , 2016 Ark. App. 276, at 2-3, 2016 WL 2981481, and awarding alimony. See Williams v. Williams , 2018 Ark. App. 79, at 12, 541 S.W.3d 477, 484. We also review a circuit court's evidentiary rulings for abuses of discretion. See Southern v. Highline Tech., Innovations Inc. , 2014 Ark. App. 613, at 4, 448 S.W.3d 712. We will not find an abuse of discretion, however, unless a circuit court acted "improvidently, thoughtlessly, or without due consideration." Gerber Prods., Co. v. CECO Concrete Constr., LLC 2017 Ark. App. 568, at 6, 533 S.W.3d 139, 143.
Likewise, we will not reverse a circuit court's finding of fact unless it is clearly erroneous. Berry , 2017 Ark. App. 145, at 2, 515 S.W.3d at 166. "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that the circuit court has made a mistake."
Id. "In reviewing a circuit court's findings of fact, [this court] gives due deference to the court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony." Id. Applying these standards to the decisions that Goodson challenges on appeal, we affirm the decree.
IV. Discussion
A. Service of the Summons and Complaint
Goodson argues, for the first time on appeal, that the case should be reversed and dismissed because the record does not contain any proof demonstrating he was properly served with Bennett's summons and complaint. Additionally, relying on Raymond v. Raymond , 343 Ark. 480, 36 S.W.3d 733 (2001), and Criswell v. Office of Child Support Enforcement , 2014 Ark. App. 309, 436 S.W.3d 152, he suggests his appearance in the case cannot be grounds to apply the doctrines of estoppel or waiver. Because Goodson waived his challenge to the circuit court's personal jurisdiction by seeking affirmative relief, we affirm.
"Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant." Affordable Bail Bonds, Inc. v. State , 2015 Ark. App. 44, at 4, 2015 WL 375037. The defense of personal jurisdiction, however, may be waived by the appearance of the defendant without raising an objection. Id. This court has "long recognized that any action on the part of a defendant, except to object to jurisdiction, which recognizes the case in court, will amount to an appearance." Id. "In deciding whether a defendant has waived his rights and entered an appearance, a determining factor is whether the defendant seeks affirmative relief." Id.
As indicated above, Goodson filed an answer to Bennett's complaint for divorce and sought affirmative relief by filing a counterclaim-and an amended counterclaim-in the circuit court. He also sought affirmative relief in the form of a stay of the final hearing until after the conclusion of the criminal case against him. In addition, he never argued below, as he does here, that he was not properly served with Bennett's summons and complaint. Accordingly, Goodson waived his challenge to the circuit court's personal jurisdiction.
Goodson's reliance on Raymond and Criswell is unpersuasive. While the defendants in each of those cases signed reconciliation and custody agreements demonstrating they had actual knowledge of the divorce proceedings, neither sought any affirmative relief, as Goodson so clearly did here. See Raymond , 343 Ark. at 487, 36 S.W.3d at 737 (observing that signing a reconciliation agreement does not constitute an appearance because it is "not a responsive pleading" and does not "request any relief from the court"); see also Criswell , 2014 Ark. App. 309, at 8, 436 S.W.3d at 157 (observing that defendant signed the custody agreement before filing of the complaint and "never filed any pleading or otherwise appeared before the divorce decree was entered"). Therefore, Goodson's challenge to the service of the summons and the complaint does not warrant reversal.
B. Visitation
For his second point, Goodson argues that the circuit court effectively applied the doctrine of collateral estoppel to the issue of visitation, allowing the entry of the ten-year order of protection to conclusively determine that Goodson should be denied visitation in the divorce decree. He specifically claims there is no indication the circuit court considered the testimony at the final divorce hearing that weighed in favor of granting him visitation, particularly Dr. Dawn Doray's testimony about the strictly supervised visitation the doctor offered at her clinic. Because the circuit court did not abuse its discretion when it denied Goodson visitation in the final decree, we affirm.
Goodson's claim that the circuit court allowed the issuance of the order of protection to dictate the outcome of visitation in the divorce is simply incorrect. The decree plainly indicates that while the order of protection weighed heavily-as it should-in the analysis, the circuit court considered the evidence admitted at the final hearing when it denied visitation:
The Plaintiff is awarded sole custody of the parties' minor child with no visitation or contact by Defendant. Pursuant to the Final Order of Protection entered in 60DR-2015-2912, Defendant shall have no contact with the Plaintiff or the minor child for the period of the ten years recited in the final order. No appeal was taken from that order and nothing in the testimony in the final hearing in the divorce action proved to this Court any modification of the Final Order of Protection was warranted or in the best interest of the child. It is not in the child's best interest to have any contact with the Defendant.
(Emphasis added.)
The circuit court's decision to deny visitation was a sound exercise of its discretion. The circuit court was bound to consider its earlier finding of domestic abuse when it determined visitation, see Ark. Code Ann. §§ 9-13-101(c)(1) & 9-15-215 (Repl. 2015), and the transcript of the August 3, 2015, hearing, which was admitted into evidence at the final hearing, demonstrates that visitation with Goodson was not in T.G.'s best interest.
According to the testimony at the August 3, 2015, hearing, Goodson subjected Bennett to domestic abuse for most of their seven-year marriage. Bennett testified, in detail, about the brutal attack that occurred on July 12, 2015, as well as an earlier attack on June 15, 2015, that also occurred in the presence of their children. Bennett further testified that Goodson attempts to manipulate the children emotionally and "poisons" them by speaking negatively about their mothers. Mollie Yoder gave similar testimony; explaining that, among other things, Goodson stalked her, beat her with a baseball bat, and "poisoned my daughter with just his shame and his manipulation against her."
The evidence at the final divorce hearing also did not weigh in favor of modifying the order of protection to allow Goodson visitation with his son. Goodson did not present much of a case in favor of visitation, offering only the testimony of his stepmother-who denied that he was abusive-and Dr. Doray.
Bennett, on the other hand, detailed both the verbal and physical abuse she suffered throughout the marriage-sometimes in the presence of the children-as well as the verbal abuse that was directed at the children themselves. According to Bennett, Goodson would tell T.G. that "something's wrong with him," that he was "stupid," and "[y]our mom doesn't love you." Goodson would also discipline T.G. by "throwing him on the bed with force," and "hold[ing] the door shut," as the child screamed. Bennett testified Goodson's abusive behavior negatively affected T.G., causing him to "run and hide" when he feared that he would be reprimanded; to have "outbursts at school where he hit kids," and to "[tug] his ear a lot," and "[bite] his shirt." T.G.'s behavior improved during the year that followed the issuance of the order of protection, and Bennett testified her "greatest fear" regarding supervised visitation was that T.G. "would start feeling anxiety all over again, and that he would regress in behavior, that he would regress on several levels." In light of all this testimony, the circuit court did not abuse its discretion when it determined that visitation with Goodson was not in T.G.'s best interest, and Goodson's argument to the contrary, which invites this court to reweigh the evidence admitted at the final divorce hearing, is unavailing. See Blasingame v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 71, at 6, 542 S.W.3d 873, 876.
C. Motion for Continuance
Goodson next argues that the circuit court abused its discretion by denying a continuance after he retained new counsel, asserting that he was prejudiced because his counsel "was severely limited in the amount of preparation time for the trial," and he was "forced to choose between his [Fifth] Amendment right against self-incrimination in his criminal trial and the need to testify in his divorce and custody case." Because Goodson has failed to bring up a record demonstrating an abuse of discretion, and otherwise has failed to demonstrate that he suffered any prejudice, we affirm.
In any event, Goodson fails to demonstrate he was prejudiced by the circuit court's denial of his motion for a continuance. "An appellant must not only demonstrate that the circuit court abused its discretion by denying the motion, but also must show prejudice that amounts to a denial of justice." Sims v. Moser , 373 Ark. 491, 510, 284 S.W.3d 505, 520 (2008). Goodson does not identify any specific prejudice that resulted from his counsel's alleged lack of adequate time to prepare for trial. He also does not allege what testimony, if any, he would have given if he had not invoked the Fifth Amendment at the final hearing, and the matters for which he claimed his testimony was most relevant-custody and visitation-were largely settled when the circuit court issued the ten-year order of protection a year before the final hearing. Therefore, we affirm.
D. Admission of Prior Hearing Transcript
During the final hearing, Bennett sought to introduce the transcript of the August 3, 2015, hearing on her petition for an order of protection, arguing admission of the transcript was necessary to avoid relitigation of the matters settled by the order of protection, as well as "for the clarity of the record." Goodson objected, arguing the transcript was cumulative to the evidence that the circuit court-the same court that issued the order of protection-heard at the hearing. Goodson further suggested the transcript was not the "best evidence" and was inadmissible hearsay. The circuit court admitted the transcript, finding it was "admissible pursuant to Rules 401 and 402 of the Rules of Evidence."
Goodson now argues on appeal that the circuit court abused its discretion because the transcript was a prior consistent statement that did not, as it must, rebut any "express or implied charge against [Bennett] of recent fabrication or improper influence or motive[.]" Ark. R. Evid. 801(d)(1)(ii) (2017). Because Goodson has failed to preserve this argument for appellate review, the circuit court's decision to admit the transcript is affirmed.
"Arguments not raised at trial will not be addressed for the first time on appeal." Dixon v. State , 2011 Ark. 450, at 16, 385 S.W.3d 164, 175. A party is bound by the scope and nature of the arguments made at trial, and a general objection does not preserve a specific point. Id. While Goodson lodged a general hearsay objection to the admission of the transcript, he did not specifically argue-as he does here-that it did not meet the criteria for the admission of a prior consistent statement. And even if Goodson's general objection preserved the specific point he raises here, the circuit court's ruling did not address hearsay at all, ruling only that the transcript was admissible because it was relevant. Goodson's failure to obtain a ruling on hearsay, in other words, is another obstacle to our review, see Meador v. Total Compliance Consultants, Inc. , 2013 Ark. 22, at 4, 425 S.W.3d 718, 720-21, and we must affirm.
E. Division of Marital Property
Goodson next argues that the circuit court erred by unequally dividing the marital property in Bennett's favor without stating the reasons for doing so, as required by Arkansas Code Annotated section 9-12-315(a) (Repl. 2015). He further appears to suggest that the marital property should have been unequally divided in his favor because Bennett allegedly dissipated the marital assets by giving away Goldendoodle puppies the couple had planned to sell for $1200 and by giving $2500 to one of her extramarital paramours. We affirm.
This court reviews a circuit court's division of marital property de novo, but we will not reverse the circuit court's findings of fact unless they are clearly erroneous, or against the preponderance of the evidence. See Kelly v. Kelly , 2014 Ark. 543, at 5, 453 S.W.3d 655, 660. Further, a circuit court "has broad powers to distribute property in order to achieve an equitable distribution." Keathley v. Keathley , 76 Ark. App. 150, 157, 61 S.W.3d 219, 224 (2001). The overriding purpose of the property-division statute, Arkansas Code Annotated section 9-12-315, is to enable the court to make a division of property that is fair and equitable under the circumstances, and a circuit court's unequal division of property will not be reversed unless it is clearly erroneous. Id. In reviewing a circuit court's findings, this court defers to the circuit court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.
Arkansas Code Annotated section 9-12-315(a)(1)(A) provides that "[a]t the time a divorce decree is entered, [a]ll marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable." In that event, the court shall make some other division the court deems equitable, taking the following factors into consideration:
(i) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(iii) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vi) Employability;
(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as homemaker; and
(ix) the federal income tax consequences of the court's division of marital property.
Ark. Code Ann. § 9-12-315(a)(1)(A)(i-ix) (Repl. 2015). In addition, "[w]hen property is divided according to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter." Ark. Code Ann. § 9-12-315(a)(1)(B).
Goodson's argument that the circuit court unequally divided property apparently is based on the premise that marital debt and marital property both must be equally divided under Arkansas Code Annotated section 9-12-315. Specifically, Goodson argues the circuit court's order that he pay the $8,896 marital debt on the couple's Capital One credit card proportionally reduced the value of the property that was awarded to him, such that there was an unequal division of property in Bennett's favor. He is mistaken. Arkansas Code Annotated section 9-12-315"does not apply to the division of marital debt," and "there is no presumption that an equal division of debts must occur." Weatherly v. Weatherly , 87 Ark. App. 291, 296, 190 S.W.3d 294, 296 (2004).
Further, there is no indication the circuit court otherwise made an unequal division of the marital assets in Bennett's favor. The circuit court awarded the parties their respective vehicles, their one-half interest in the $50,000 in cash that was in the Browning safe, as well as their one-half interest in the personal property that remained, including guns, televisions, the Browning safe itself, jewelry, a Rolex watch, and gold and silver coins. Goodson also does not point to any evidence of fraud that would have warranted a reduction in Bennett's share of the marital assets to compensate for the value of the Goldendoodle dog or the money that she gave to one of her paramours. See Wainwright v.Merryman , 2014 Ark. App. 156, at 4, 2014 WL 988977 ("A spouse is not entitled to be reimbursed in a divorce proceeding for every nonconsensual transfer of marital funds made by the other spouse in the absence of proof of an intent to defraud."). Therefore, because Goodson fails to demonstrate the circuit court clearly erred when it divided the marital property, we affirm the decree.
F. Spousal Support
In the divorce decree, the circuit court allocated over $13,000 in marital debt owed to medical providers and counselors, as well as the couple's unpaid obligation to the Internal Revenue Service, to Goodson. In doing so, the court found some of the debts were "incurred by [Bennett] due to the physical and mental abuse she suffered at the hands of [Goodson.]" The circuit court further provided that "[t]he aforementioned marital debts are considered by this [c]ourt to be in the nature of support owed to the plaintiff and the minor child," and Goodson "shall reimburse [Bennett] for any portion of these debts she has previously paid within ninety (90) days of the Divorce Decree entered in this matter." On appeal, Goodson argues the circuit court's characterization of the debt payments as "in the nature of support," transforms the allocation of debt into an award of alimony that is not supported by any analysis of Bennett's financial need, Goodson's ability to pay, or other relevant factors. Therefore, Goodson suggests the circuit court's alleged award of alimony is an abuse of discretion that must be reversed. He is incorrect.
Generally, "the purpose of alimony is to rectify economic imbalances in earning power and standard of living in light of the particular facts in each case,"
and "[t]he primary factors to be considered in determining whether to award alimony are the financial need of the one spouse and the other spouse's ability to pay." Foster v. Foster , 2016 Ark. 456, at 9, 506 S.W.3d 808, 814-15. Secondary factors, such as the financial circumstances of both parties, the couple's past standard of living, and the earning ability and capacity of each party, should also be considered. Id. , 506 S.W.3d at 815.
An award of temporary alimony , however, need not be supported by an analysis of the needs of the payee spouse or the payor's ability to pay if other considerations make alimony necessary to achieve an equitable result. See Russell v. Russell , 2013 Ark. 372, at 7-8, 430 S.W.3d 15, 20. Although the equitable considerations are different, we view the circuit court's allocation of these debts to Goodson "in the nature of support," as an award of temporary alimony akin to the one at issue in Russell , in which the circuit court ordered the appellant to pay his ex-wife alimony in the amount of $11,370 per month for a period of twenty-four months to offset an unequal division in marital property. See id. at 5, 430 S.W.3d at 19. Here, the allocation of debt to Goodson and the payments to reimburse Bennett achieved the equitable result of making Goodson responsible for marital debts that were incurred as a direct result of his "horrific acts of abuse against [Bennett]," which "far outweigh[ed] any bad acts of [Bennett]." The allocation of the tax debt was consistent with the circuit court's finding that the couple's failure to file income taxes was "a decision made by [Goodson]." Under these circumstances, the circuit court did not "act improvidently, thoughtlessly, or without due consideration," see Gerber , 2017 Ark. App. 568, at 6, 533 S.W.3d 139, when it awarded support without analyzing Bennett's need or Goodson's ability to pay.
G. Attorney's Fees
Goodson next argues that the circuit court abused its discretion when it awarded attorney's fees to Bennett. His argument is twofold. First, Goodson alleges Bennett did not file a motion that specified the "statute or rule entitling [her] to relief" as required by Arkansas Rule of Civil Procedure 54(e) (2017), within the time frame the circuit court ordered. Second, he suggests the circuit court awarded an unreasonable amount of fees and costs, alleging that Bennett's counsel charged for fees related to the order of protection, for which Bennett was already awarded fees, as well as for allegedly unrelated communications with the prosecuting attorney and detectives related to the criminal case. Because neither of these arguments has merit, we affirm the circuit court's order awarding fees and costs.
The facts underlying the issue are these. On February 10, 2017, the circuit court filed a letter opinion providing that the court was granting Bennett "an absolute divorce" against Goodson and "award[ing] [Bennett] reasonable fees and costs incurred in this matter." The letter opinion directed Bennett's counsel to prepare a precedent consistent with the letter opinion, and it further directed Bennett's counsel to "submit a fee petition with the precedent." The circuit court also ordered that Goodson would have seven days to respond to Bennett's fee petition.
On February 24, 2017, Bennett filed a petition seeking $41,648.64 in attorney's fees and costs. Goodson filed a response on March 3, 2017. In addition to disputing several of the charges in Bennett's fee petition, Goodson argued the petition "must fail as a matter of law" because it did not specify the "statute or rule entitling [her] to relief" as required by Arkansas Rule of Civil Procedure 54(e) (2017). Bennett filed an amended petition on March 10, 2017, alleging "[t]he Plaintiff, as the prevailing party, is entitled to costs, as per Rule 54(d)(1)," and "[t]he Plaintiff, as the prevailing party, is entitled to attorneys' fees and costs as per Rule 54(e)(1) and Arkansas Code Annotated section 9-12-309(a)(2)." Goodson filed a response on March 15, 2017, arguing that Bennett's amended petition, which was filed outside the time prescribed in the circuit court's letter opinion, did not cure the defect in her first petition. On that same day, the circuit court entered a "Decree of Divorce and Final Orders," which, like the letter opinion, provided that Bennett was "awarded her reasonable attorney fees and costs incurred in this matter," and gave Goodson "seven days to respond to the fee petition." Subsequently, on March 30, 2017, the circuit court entered an order awarding Bennett $30,000 in fees and costs.
We reject Goodson's first argument, that the circuit court abused its discretion because Bennett failed to file an amended fee petition within the time prescribed by the circuit court's letter opinion, for three reasons. First, the circuit court is always free to exercise its inherent authority to grant fees in domestic-relations cases, see Vice v. Vice , 2016 Ark. App. 504, at 9-10, 505 S.W.3d 719, 725, obviating any need for Bennett to cite the statutory authority entitling her to fees. Second, even assuming Arkansas Rule of Civil Procedure 54(e)(2) still required Bennett to cite such authority in her motion, the amended motion exceeded only a prejudgment time limit and, for that reason, posed no risk to the interests protected by the 14-day postjudgment time limit in Arkansas Rule of Civil Procedure 54(e)(2). As the record demonstrates, Goodson had ample time to oppose Bennett's motion and seek appellate review of the circuit court's fee ruling along with the merits of the divorce case. Third, Rule 54(e)(2)'s authorization for the circuit court to set an alternate time table, which Goodson concedes, necessarily includes permission to extend it, which the circuit court apparently did when it granted Bennett's motion despite Goodson's objection to its timeliness. Cf. State Auto Prop. and Cas. Ins. Co. v. Swaim , 338 Ark. 49, 60-61, 991 S.W.2d 555, 562 (1999) (holding that oral motion for fees was acceptable because, in part, Rule 54(e)(2) authorizes a court to modify its procedure for requesting attorney's fees). Accordingly, for all of these reasons, we hold the circuit court did not abuse its discretion.
Goodson's argument challenging the reasonableness of the fee award is also unavailing. "In domestic-relations proceedings, the circuit court has the inherent power to award attorney fees, and the decision to award fees and the amount of those fees are matters within the discretion of the circuit court." James v. Walchli , 2015 Ark. App. 562, at 6-7, 472 S.W.3d 504, 508. Absent an abuse of that discretion, an award of fees will not be disturbed on appeal. Id. at 7, 472 S.W.3d at 508.
Furthermore, "[t]here is no fixed formula for determining what constitutes a reasonable amount of attorney fees." Id. "Because the trial court has presided over the case and gained familiarity with the case and the extent and quality of the services rendered by the attorney, the trial court has a superior opportunity to assess the critical factors that apply." Id. Pertinent considerations can include "the attorney's judgment, learning, ability, skill, experience, and professional standing; the relationship between the parties and the importance of the subject matter of the case; the nature, extent, and difficulties of services; and the research, anticipation of defenses and means of meeting them[.]" Id. at 8, 472 S.W.3d at 508. Finally, "[t]he relative financial ability of each party is a consideration, but it is not determinative." Id.
Goodson has not demonstrated that the fees awarded to Bennett were unreasonable. The circuit court granted only $30,000 in fees and costs to Bennett-a substantial reduction from the $41,648.64 that she requested-and Goodson never requested specific findings demonstrating that even the reduced fee award is an abuse of discretion. See Tiner v. Tiner , 2012 Ark. App. 483, at 14-15, 422 S.W.3d 178, 186. Additionally, the complexity of the case, as well as the circuit court's finding that Goodson "pursued his counterclaim to further the expense of the litigation, to embarrass [Bennett], and to increase the emotional turmoil of [Bennett] in having to deal with [Goodson's] claims," indicates that the circuit court did not act "improvidently, thoughtlessly, or without due consideration," Gerber , 2017 Ark. App. 568, at 6, 533 S.W.3d 139, when it awarded $30,000.00 in fees and costs to Bennett. Accordingly, we affirm.
H. Impeachment
Goodson next argues that the circuit court abused its discretion by imposing a five-year limitation on his cross-examination of Bennett with her past allegations of sexual abuse. More particularly, he argues he should have been able to impeach her credibility by questioning her about a sexual-harassment complaint that she made against an employer, as well as an allegation of abuse that she made during her childhood. Because the trial court did not abuse its discretion by imposing the limitation, and Goodson cannot demonstrate prejudice in any event, we affirm the decree.
A circuit court has wide latitude to impose reasonable limits on cross-examination based upon concerns over confusion of the issues, see Gordon v. State , 326 Ark. 90, 93, 931 S.W.2d 91, 94 (1996), and the record demonstrates that the circuit court restricted Goodson only from asking about an allegation of physical abuse that she made against her father more than thirty years before she filed for divorce. The circuit court did not abuse its discretion by refusing to allow Goodson to impeach Bennett with that marginally relevant allegation.
In any event, "[a]n evidentiary error must be prejudicial to justify reversal," Tanner v. Tanner , 2015 Ark. App. 668, at 7, 476 S.W.3d 832, 836, and Goodson has not demonstrated he was prejudiced by the alleged restriction on his ability to impeach Bennett's credibility. First, the prior allegations apparently were intended to impeach Bennett's account of the attack on July 12, 2015; but her credibility was largely settled when the circuit court issued the final order of protection. Second, as indicated above, Goodson was able to cross-examine Bennett about the sexual-harassment complaint she made against an employer and was able to attack her credibility with questions concerning her extramarital affairs, false statements she made online, and the inconsistent statements she made regarding other details of the July 12, 2015, domestic abuse. Accordingly, because Goodson cannot demonstrate prejudice from any evidentiary error, we affirm.
I. Motion to Reopen
On September 9, 2016, approximately one week after the conclusion of the trial, Goodson filed a "Motion to Reopen Record Due to Newly Discovered Evidence." In the motion, Goodson alleged that records Goodson subpoenaed from the Mutual Trust Life Insurance Company were produced the day after the trial concluded on September 1, 2016, and he requested the court consider an affidavit from Timothy Ridge, his financial expert. Mr. Ridge averred in the affidavit that several requests for loans against Goodson's whole-life insurance policy had been forged, and the implication of the motion, as well as Mr. Ridge's affidavit, was that Bennett was responsible for the alleged forgeries.
Bennett filed an answer on September 24, 2016, arguing that the evidence should be excluded because Goodson "fail[ed] to conduct discovery in a timely manner." In an attached affidavit, she also alleged she "was not part of Mr. Ridge's review of the [insurance] transactions." She further alleged that "there [was] no fraud," because she "was afforded permission by Defendant Dean Goodson to sign his name and make requests via our servicing agent." Bennett's affidavit also explained the circumstances of the alleged fraudulent transactions.
Several weeks later, on November 4, 2016, Goodson filed an "Amended Motion to Reopen the Record Due to Newly Discovered Evidence." In addition to Mr. Ridge's affidavit, the amended motion asked the circuit court to consider the affidavit of Kimberly Waters, who stated that Bennett implicitly urged her to evade service of a subpoena to testify at the trial; that Bennett told her how she should testify; that Ms. Waters knew about one of Bennett's affairs; and that Bennett attempted to break up Ms. Waters's marriage. The motion also requested that the circuit court reopen the record to consider the testimony of Logan Wilcoxson, one of Bennett's extramarital paramours, who failed to appear at the trial. In an answer filed on November 18, 2016, Bennett denied the allegations in Ms. Waters's affidavit and argued that, in light of her own testimony admitting her extramarital affairs, "Mr. Wilcoxson's testimony would have been irrelevant at the trial of this matter." In the letter opinion filed on February 10, 2017, and later in the decree entered on March 15, 2017, the circuit court denied Goodson's amended motion to reopen the record.
As he did below, Goodson argues that his amended motion to reopen the record is akin to a motion for a new trial and is therefore governed by Arkansas Rule of Civil Procedure 59 (2017), as well as an abuse-of-discretion standard of review. While we agree that the circuit court's denial of Goodson's motion should be reviewed for an abuse of discretion, we believe the court's ruling is more accurately viewed as one that simply excluded evidence. Goodson's amended motion seeking to reopen the record was filed well before the circuit court issued its letter opinion or entered the decree-when the circuit court was still free to consider the evidence without reversing any prior decision on the merits of the case.
In either event, the circuit court did not abuse its discretion by denying the motion to reopen. Relevant evidence may be excluded if its probative value is outweighed by the danger of needless presentation of cumulative evidence, Arkansas Rule of Evidence 403 (2017), and Mr. Wilcoxson's and Ms. Waters's proposed testimony concerning Bennett's extramarital affairs was cumulative of Bennett's trial testimony acknowledging them. Any value their testimony would have had for Goodson's counterclaim was lost when he nonsuited the counterclaim at the end of the trial. It is also plain that the circuit court would not have given much weight to Mr. Ridge's opinion that the records demonstrated fraudulent transactions, as the circuit court "place[d] absolutely no value" in his trial testimony, and Goodson has not alleged any clear error associated with that frank assessment of Mr. Ridge's credibility. Therefore, the circuit court did not abuse its discretion when it denied Goodson's amended motion to reopen the case.
J. Cumulative Error
Goodson makes a cumulative-error argument in his final point, asserting that he "has effectively been denied a fair trial due to the multiple errors that occurred during the trial of this matter and set forth in this appeal." He also suggests this court should overrule precedent requiring him to preserve the argument with an objection at trial.
"An appellant asserting a cumulative-error argument must show that there were individual objections to the alleged errors and that the cumulative-error objection was made to the trial court and a ruling was obtained." Southern Farm Bureau Cas. Ins. Co. v. Daggett , 354 Ark. 112, 132, 118 S.W.3d 525, 537 (2003). This court, moreover, must "follow the precedent set by the Supreme Court, and is "powerless to overrule its decisions." Rice v. Ragsdale , 104 Ark. App. 364, 368, 292 S.W.3d 856, 860 (2009).
Goodson does not dispute that he failed to make a cumulative-error objection at trial, and as stated above, this court cannot overrule Daggett 's requirement that he make such an objection to preserve the issue for appellate review. The decree, therefore, is affirmed.
IV. Conclusion
Goodson has failed to raise any error warranting reversal. He waived his challenge to the service of the summons and complaint, and contrary to his claim here, the circuit court considered the evidence at the final hearing to determine that visitation with his minor son was not in the child's best interest. Goodson has similarly failed to demonstrate any error associated with the circuit court's denial of his motion for a continuance or the admission of the transcript of the August 3, 2015, hearing on Bennett's petition for an order of protection. The circuit court also equally divided the marital property, and there is no merit to Goodson's argument that Bennett's behavior warranted an unequal division for his benefit. Goodson also has failed to demonstrate that the circuit court abused its discretion by awarding temporary alimony, by awarding attorney's fees and costs to Bennett, or by limiting the scope of his cross-examination regarding Bennett's past allegations of sexual abuse. Goodson has also failed to preserve his cumulative-error argument for appellate review, and we hold that the circuit court did not abuse its discretion by denying Goodson's amended motion to reopen. Therefore, we affirm the decree.
Affirmed.
Vaught and Hixson, JJ., agree.
We also reject Goodson's suggestion that the decree should also be reversed because the circuit court did not make any finding concerning the "value or division of Giraffe Financial." The testimony at the hearing demonstrated that Giraffe Financial was a premarital asset that was no longer in good standing with the Arkansas Secretary of State and, according to Ms. Bennett, "[was not] worth anything."
Goodson offhandedly raises an additional argument challenging the amount of costs that the circuit court awarded to Bennett, alleging that they were inappropriate because they were not authorized under Arkansas Rule of Civil Procedure 54(d) (2017). He concedes, however, that the costs would be authorized under Arkansas Code Annotated section 9-12-309(a)(2), allowing awards of litigation costs in divorce cases, if a timely motion citing the statute had been filed. Because we conclude, infra , that Bennett indeed filed a timely motion in the circumstances of this case, we affirm. | [
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DAVID M. GLOVER, Judge
Appellant Calvin Blair was convicted by a Pulaski County Circuit Court jury of battery in the first degree, possession of a firearm by certain persons, and theft by receiving; the jury further found he had employed the use of a firearm in the commission of the battery. Blair was sentenced as a habitual offender to a total of fifty-one years' imprisonment. On appeal, he takes issue only with his conviction for theft by receiving, arguing (1) the State failed to introduce substantial evidence the firearm he possessed on October 24, 2016, was stolen, and (2) the State failed to introduce proof the allegedly stolen firearm had any value. We affirm.
The pertinent facts giving rise to the issues on appeal are as follows. On October 16, 2016, Blair called Timothy Parker between 9:00 and 10:00 p.m. wanting Parker to meet him outside Parker's house. When Parker went outside, a third man ran toward Parker and Blair; both Blair and the third man had firearms and ordered Parker to open the door to his house. When Parker's wife opened the front door, Parker attempted to run through the door and lock it, but he was shot twice by Blair, once in the back and a second time in the chest. Blair and the third man went to the bedroom with Parker's wife. Parker heard Blair tell the third man to go see if Parker was dead. The third man returned to the front room, shot Parker's dog twice, and then reported to Blair that both Parker and the dog were dead; however, they both survived. Four shell casings were recovered from the Parker home-two 9mm casings and two .40 caliber casings.
On October 24, the Little Rock Police Department, acting on a tip, arrested Blair for outstanding warrants. At the time of his arrest, Blair was wearing a holster on his right hip containing a black Smith & Wesson M & P .40 caliber firearm. Officer Scott Miles of the Little Rock Police Department identified the pistol presented by the State at trial as the one Blair possessed at the time of his arrest and testified that, at the time of Blair's arrest, the semiautomatic .40 caliber weapon was loaded with eight bullets, one in the chamber and seven in the magazine. Officer Miles further identified the firearm by its serial number, which he had recorded-HWR0747.
Presley Roberts testified that the firearm taken from Blair was purchased by Roberts for his nephew but had been stolen from his truck the previous February; he had filed a police report regarding the theft. He said he could tell the firearm was his because it looked similar to the one he purchased, and the firearm's serial number should be R0767. Roberts stated he did not know Blair and had not given the firearm to him, nor had he authorized anyone else to be in possession of the firearm.
Blair moved for a directed verdict at the close of the State's case-in-chief. Specifically, with respect to the theft-by-receiving charge, he argued (1) the State failed to introduce any evidence regarding the value of the .40 caliber firearm and (2) Roberts had misidentified the firearm serial number. The circuit court denied his motion.
Blair testified in his own defense, admitting he had a .40 caliber gun with him on the date of the incident at the Parker home, but he denied it was the one the State had placed into evidence. He claimed he had traded some marijuana for that .40 caliber firearm, and he did not know if the gun was stolen. Blair stated the firearm introduced into evidence was not the firearm he had when he shot Timothy Parker in self-defense, because he had dismantled that firearm and thrown the parts into various dumpsters. Blair explained he obtained another firearm a few days later from his friend Jabaris as a gift for favors he had performed for Jabaris, and he did not know it was stolen. Blair admitted he often obtained guns off the street; he said he never went to the store to buy guns.
After Blair's testimony, the defense rested and renewed its directed-verdict motion, adding the argument that the State failed to prove Blair knew or had good reason to believe the gun he possessed was stolen. The circuit court again denied the motion. The jury found Blair guilty, and he now brings this appeal.
Blair first argues the State failed to introduce substantial evidence that the firearm he possessed on October 24, 2016, was stolen. Specifically, he argues the serial number of the firearm in evidence did not match the serial number of Presley Roberts's firearm-the firearm in evidence had serial number HWR0747, while Roberts testified the serial number of his firearm was R0767.
A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Crozier v. State , 2016 Ark. App. 307, 496 S.W.3d 401. The test for determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Baca v. State , 2013 Ark. App. 524. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere speculation or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee, considering only that evidence supporting the verdict. Id.
A person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person, knowing that the property was stolen, or having good reason to believe the property was stolen. Ark. Code Ann. § 5-36-106(a) (Repl. 2013). The unexplained possession or control of recently stolen property or the acquisition of property for a consideration known to be far below the property's reasonable value both give rise to a presumption that a person knows or believes that the property was stolen. Ark. Code Ann. § 5-36-106(c).
We cannot agree with Blair's contention. A jury is free to believe any witness's testimony in part or in whole; it may resolve questions of conflicting testimony and inconsistent evidence; it is not required to set aside common sense; and it need not view each fact in isolation but may instead consider the evidence as a whole. Neal v. State , 2016 Ark. App. 384, 499 S.W.3d 254. A jury may infer a defendant's guilt from improbable explanations of incriminating conduct. Worsham v. State , 2017 Ark. App. 702, 537 S.W.3d 789.
Here, Roberts identified the firearm as belonging to him. While the serial-number evidence was off by one number, this discrepancy was an issue to be weighed by the jury. Furthermore, Blair claimed he had obtained the firearm in question from his friend Jabaris as a gift and did not know it was stolen; however, the jury was not required to believe his testimony on this issue. Blair testified he often obtained his guns off the street. We hold there is sufficient evidence to support the jury's decision Blair committed theft by receiving.
Blair next argues the circuit court erred in denying his motion for directed verdict on the theft-by-receiving charge because the State failed to introduce any proof the allegedly stolen firearm had any value. We again disagree.
Blair was charged with and convicted of theft by receiving under Arkansas Code Annotated section 5-36-106(e)(3)(B)(iii), which provides that theft by receiving is a Class D felony if the property is a firearm valued at less than $2500. Citing Cannon v. State , 265 Ark. 270, 578 S.W.2d 20 (1979), Blair argues the State is required to put on affirmative proof of the value of the allegedly stolen property. The facts in Cannon are distinguishable; in that case, the appellant was found guilty of Class C felony theft by receiving, which required the State to prove that the value of the property was less than $3500 but more than $100. While there was evidence that the owner of the property, a 1955 Chevrolet automobile, paid $148 for it in 1966, there was no evidence of the value of the vehicle when it was stolen in 1978; our supreme court held that experience and common knowledge could not be used as a substitute for evidence that the vehicle had a value of more than $100. However, our supreme court further held there was substantial evidence the automobile had some value and modified the conviction for theft by receiving to a misdemeanor, which required that the property have a value of $100 or less.
In the present case, theft by receiving is a Class D felony if the property is a firearm valued at less than $2500. In Gregory v. State , 9 Ark. App. 242, 657 S.W.2d 570 (1983), our court held theft by receiving of a firearm was at least a Class C felony regardless of the weapon's value, and the State was not required to establish the value of the weapon to obtain a conviction. The offense is now a Class D felony if the property is a firearm valued at less than $2500, but the reasoning behind not requiring the State to prove the value of the firearm is the same. Theft by receiving of a firearm is at least a Class D felony regardless of the weapon's value, and the State is not required to establish the value of the firearm in order to obtain a conviction. Therefore, we affirm on this point as well.
Affirmed.
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RAYMOND R. ABRAMSON, Judge
Paul Gilton was convicted of two counts of sexual assault following a bench trial in the Craighead County Circuit Court. Gilton's sole argument on appeal is that the State's evidence did not sufficiently prove that he committed sexual assault; thus, the circuit court erred in denying his motion for a directed verdict. We affirm.
Janelle Hall is the mother of J.W. Hall testified that in February 2016, she had asked Gilton-J.W.'s paternal step-grandfather-to babysit J.W. while she ran some errands. At that time, J.W. was seven years old and Gilton was sixty-three years old. Upon returning home, Hall discovered J.W. in her underwear. According to Hall, J.W. had on a t-shirt and pajama pants when she left the home to run errands.
When Hall asked J.W. what had occurred, J.W. dropped her head and ran out of the room. Hall said she heard J.W. tell Gilton that she was going to tell on him for what he had done to her and Gilton stated that J.W. should "not do that or [we] would both get into trouble." After J.W. and Gilton's conversation, J.W. returned to the room and informed Hall that Gilton had tried to "hump" her. Hall asked Gilton about his actions, and Gilton informed Hall that he and J.W. were only wrestling. At that point, Hall no longer wanted Gilton at her home and asked Gilton's sister to pick him up.
Afterward, Hall and J.W. informed the Jonesboro Police Department that Gilton had sexually assaulted J.W. Officer Tyler Wilson completed an incident report and referred Hall to the Crimes Against Children Division (CACD) of the Arkansas State Police. Hall subsequently reported the information to the CACD. On February 17, 2016, Lesley Faulkner of the CACD interviewed J.W., videotaped the interview, and provided a transcribed copy of the interview to law enforcement.
On August 10, 2016, the State filed two counts of sexual assault against Gilton. The first count stemmed from the February 2016 allegations, and the second count stemmed from actions that were alleged to have occurred between October and November 2014. On September 15, 2017, the State filed an amended information charging Gilton as a habitual offender. Gilton waived his right to a jury trial, and a bench trial ensued.
As its primary witnesses, the State called J.W., Officer Wilson, Hall, Faulkner of the CACD, Annie Calwell, and Raymond Willison. J.W. testified that (1) she was home alone with Gilton in February 2016; (2) Gilton was in her bedroom; (3) Gilton called her to the bedroom; (4) she got under the covers with him because she was cold; (5) Gilton got on top of her and started to "hump" her; (6) she told him to get off, but Gilton ignored her and continued to "hump" her; and (7) Gilton also "put his tongue in [her] mouth and kissed [her]." Additionally, J.W. testified that Gilton had bathed her a few times before February 2016. She said Gilton had washed her vagina, buttocks, and nipples.
Calwell is J.W.'s godmother and Hall's best friend, and she testified that sometime before 2016, she once heard Gilton talking about bathing J.W. Although she had never witnessed Gilton acting inappropriately with J.W., Calwell stated that she informed Gilton that J.W. was mature enough to bathe herself. Willison, Hall's former boyfriend, testified that he had seen, on a separate occasion before the February 2016 sexual assault, Gilton bathing and touching J.W. After the State rested, Gilton moved for a directed verdict, which the circuit court denied.
Gilton then presented his case-in-chief. He called Jessie Mae Gilton as his witness. Jessie Mae is Gilton's wife, and she testified that they were separated but while they were together, she had never witnessed Gilton acting inappropriately while J.W. or any other grandchild was in his care. Gilton renewed his motion for a directed verdict, and the circuit court denied it again. The circuit court found Gilton guilty of both counts of sexual assault. In its oral ruling, the circuit court stated,
The State has produced the proof concerning the age elements. The Court finds that there has been sufficient proof of sexual gratification and of sexual contact. The testimony of the witness Willison was credible. The timeframe bay [sic] be off and the Court will allow it because the child is a victim and the decision is based on the testimony of the statement of the child of the touching of the breasts. I also find that it makes no difference that he was fully clothed when I am finding him guilty because the statute states it can be through clothing.
The circuit court entered its order on January 25, 2018, sentencing Gilton to eight years' imprisonment on the first count and twelve years' imprisonment on the second count. This timely appeal followed. Gilton's sole argument on appeal is that the circuit court erred in failing to grant his motion for a directed verdict because the State did not present substantial evidence to support the convictions of sexual assault.
A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Castrellon v. State , 2013 Ark. App. 408, at 2, 428 S.W.3d 607, 609-10. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. Weighing the evidence, reconciling conflicts in testimony, and assessing credibility are all matters exclusively for the fact-finder. See, e.g. , Wilson v. State , 2018 Ark. App. 371, at 3, 554 S.W.3d 279, 282.
Sexual assault in the second degree is committed when a person who is eighteen years of age or older engages in sexual contact with another person who is less than fourteen years old and not the person's spouse. Ark. Code. Ann. § 5-14-125(a)(3) (Supp. 2017). Sexual contact is defined as any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(11). Sexual gratification is not defined by the statutory code, but the two words have been interpreted according to their plain meaning. See Brown v. State , 374 Ark. 341, 288 S.W.3d 226 (2008).
Gilton contends that the State presented insufficient evidence to support his convictions because the State relied only on the testimony of J.W., Hall, Calwell, and Willison. He compares J.W.'s videotaped interview with her witness-stand testimony. He alleges that the "testimony of [J.W.] was inconsistent with the video in several places, specifically about the order of events, what [J.W.] was doing before and after the alleged incident, and details of time and statements made." According to Gilton, he alleges that J.W.'s testimony related to the alleged February 2016 sexual assault only and did not relate to the alleged October/November 2014 sexual assault that gave rise to count two because J.W. stated she did not remember that particular incident.
Gilton further alleges that Calwell and Willison-as the State's two character witnesses-"had no actual knowledge of the events leading to the charges against [t]he Appellant" and that "they simply testified to other, unrelated alleged incidents for which the Appellant had not been charged, or hearsay." Moreover, he contends that "[t]he offered testimony of all witnesses lacked corroborating evidence to sustain the elements of the charges."
For purposes of appellate review, the testimony of J.W., Officer Wilson, Hall, Faulkner, Calwell, and Willison are to be viewed most favorably to the State. See Castrellon , 2013 Ark. App. 408, at 2, 428 S.W.3d at 609-10. Most importantly, J.W. testified that Gilton had "humped" her-i.e., that he had inappropriately touched her-while she was under Gilton's care in February 2016 and that he had touched her vagina, buttocks, and nipples when he had bathed her on previous occasions even though, during her testimony, she did not remember the exact timeframe. We have held that a sexual-assault victim's testimony may constitute substantial evidence to support a sexual-assault conviction. See Brown , 374 Ark. at 342-45, 288 S.W.3d at 228-30 ; Wilson , 2018 Ark. App. 371, at 3, 554 S.W.3d at 282. Because the court found her credible, J.W.'s testimony did not need to be corroborated. See Brown , 374 Ark. at 342-45, 288 S.W.3d at 228-30 ; Wilson , 2018 Ark. App. 371, at 3, 554 S.W.3d at 282.
Also, Faulkner testified that she has "recorded and interviewed over a thousand children" and that she has "found that children will remember things later on that they did not initially remember when they were talking to me." Faulkner's testimony explains why J.W.'s interview and testimony about the February 2016 sexual assault might not have aligned in every respect. The circuit court, and not this court, is responsible for weighing the evidence, reconciling conflicts in the testimony, and assessing witnesses' credibility. See, e.g. , Wilson , 2018 Ark. App. 371, at 3, 554 S.W.3d at 282. Also, the circuit court placed great weight on Willison's testimony regarding the October/November 2014 sexual assault and found him to be credible. In totality, the circuit court based its ruling on substantial evidence that supports Gilton's sexual-assault convictions and did not err in denying Gilton's motion for a directed verdict. Therefore, we affirm the circuit court's ruling.
Affirmed.
Gladwin and Murphy, JJ., agree.
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KENNETH S. HIXSON, Judge
Appellant Jason Michael Hoyle appeals after he was convicted by a Pulaski County Circuit Court jury of rape. He was sentenced as a habitual offender to serve 720 months' imprisonment. On appeal, appellant does not contest the sufficiency of the evidence. Rather, appellant's sole argument is that the trial court abused its discretion in excluding the testimony of two rebuttal witnesses for the defense. We affirm.
Appellant was arrested and charged by felony information with rape in violation of Arkansas Code Annotated section 5-14-103(a)(1) (Repl. 2016). The State further alleged that appellant's sentence should be increased as provided in Arkansas Code Annotated section 5-4-501(b) because he had been previously convicted of four or more felonies. On February 1, 2017, the State filed its discovery motion specifically requesting that the defense provide the names and addresses of any person the defense intended to call as a witness at trial. A jury trial was held on September 26-27, 2017.
In a pretrial hearing on the first day of trial, the State informed the trial court that the defense had provided it with the names of two witnesses the day before trial. The trial court ruled that their testimony would be excluded in appellant's case-in-chief because providing names on the eve of trial was insufficient and that the State did not have an adequate amount of time to talk with the witnesses. The defense did not object or offer any reason for why it had failed to provide the names earlier.
Casey Ball testified at trial that while she was waiting at her children's bus stop on December 8, 2016, appellant, whom she had not met before, approached her and told her that he had some children's toys that he wanted to give away to someone who had kids. Appellant told her that he would leave them on his front porch if she wanted to pick them up while he was gone. Later that day, Ball went to appellant's home with her children at the time he told her that he would be away. However, she found that appellant was at his home and that the front door had been left open. Her children saw the toys on the porch and in the living room and ran to play with them. Ball explained that she went into appellant's home and that he showed her around his trailer. Ball testified that when she heard her son crying and attempted to leave to attend to him, appellant grabbed her, pushed her onto his bed, and raped her. She testified that she did not scream because she did not want her children to come into his bedroom. After she returned to her home with her children, Ball called her sister-in-law, who told her to call the police. Ball testified that she was taken to the hospital and that the hospital prepared a rape kit.
Officer Leasha Rice testified that she responded to Ball's call to the police. When she arrived, Ball was crying and shaking. Ball gave Rice a description of appellant and the exact location of his residence. Employees from the Arkansas State Crime Laboratory confirmed that the semen found on a vaginal swab and various pieces of Ball's clothing was consistent with appellant's DNA.
Officer Mitchell Zimmerman testified that he went to appellant's home and subsequently arrested him. At that time, appellant admitted that Ball had been to his home and stated that Ball had wanted him to "shower with her." Officer Zimmerman further testified that appellant later told him that the only thing Ball and appellant did was kiss and "rub up on each other" on the bed.
On the morning of the second day at trial and outside the presence of the jury, defense counsel announced that he wished to call Meagan Conners and Jimmy Sandefur strictly as rebuttal witnesses. Defense counsel argued that rebuttal witnesses were not required to be disclosed ahead of time and that he would restrict his questions to rebuttal information only. The State objected and argued that the defense was calling the witnesses for impeachment purposes-not as true rebuttal witnesses. Defense counsel responded that the testimony was "impeaching rebuttal" that he would not have needed to produce until after Ball testified. The trial court commented that it seemed as though the defense was "trying to find a backdoor way to get witnesses that [it] didn't disclose to the State." The trial court initially took the matter under advisement but later denied the request. In doing so, the trial court explained that if it had used the defense's theory to define a rebuttal witness, every defense witness would be considered a rebuttal witness, and "that's not true rebuttal."
Therefore, defense counsel proffered the testimony of Jimmy Sandefur and Meagan Conners to preserve the issue for appeal. Sandefur testified that he had seen Ball leave appellant's trailer on the day of the incident. According to him, she appeared to be walking normally and did not seem to be upset. Conners testified that Ball had personally visited her the evening of the incident. At that time, Ball admitted to her that she had sex with appellant earlier that day. Conners additionally testified that Ball did not appear to be distraught or upset.
After the State rested and the trial court denied appellant's motion for directed verdict, appellant did not provide any witness testimony on his behalf. The jury found appellant guilty, and appellant was sentenced to serve 720 months' imprisonment as a habitual offender. This appeal followed.
On appeal, appellant argues that the trial court abused its discretion in excluding the testimony of two rebuttal witnesses for the defense. Matters pertaining to the admissibility of evidence are left to the sound discretion of the trial court. McEwing v. State , 366 Ark. 456, 237 S.W.3d 43 (2006). We will not reverse such a ruling absent an abuse of that discretion; nor will we reverse absent a showing of prejudice, as prejudice is not presumed. Id.
Arkansas Rule of Criminal Procedure 18.3 (2017) provides the applicable discovery rule in criminal cases:
Subject to constitutional limitations, the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof.
Our supreme court has held that the rule applies with equal force to testimony offered in support of a general-denial defense and testimony offered to support an affirmative defense. Weaver v. State , 290 Ark. 556, 720 S.W.2d 905 (1986). Sanctions by the trial court for failure to adhere to discovery rules include granting a continuance, excluding the evidence, or ordering the discovery. Ark. R. Crim. P. 19.7. Discovery in criminal cases, within constitutional limitations, must be a two-way street. Mitchell v. State , 306 Ark. 464, 816 S.W.2d 566 (1991). This interpretation promotes fairness by allowing both sides the opportunity to full pretrial preparation, preventing surprise at trial, and avoiding unnecessary delays during the trial. Id.
In the instant case and without any objection, the trial court properly found that appellant's failure to comply with the discovery motion prejudiced the State and prohibited appellant from presenting these witnesses in his case-in-chief. Without the names and addresses of appellant's witnesses, the State could not exercise its right to obtain information questioning the witnesses' credibility. Id. Further, appellant should have known the necessity of the witnesses' testimony long before the eve of trial, and appellant offered no excuse for his failure to disclose the witnesses to the State. See Hardaway v. State , 2011 Ark. App. 99 ; Washington v. State , 2010 Ark. App. 596, 377 S.W.3d 518.
Appellant's attempt at trial and now on appeal to characterize his witnesses as rebuttal witnesses is unavailing. In Mitchell , our supreme court rejected a similar argument. There, the defense attempted to offer the testimony of six witnesses as "rebuttal witnesses" after the trial court had excluded their testimony as a sanction for the defense's failure to comply with the State's discovery request for the names and addresses of the defense witnesses who would testify at trial pursuant to Rule 18.3. Our supreme court acknowledged that Mitchell was attempting to characterize the witnesses as "rebuttal witnesses" in an effort to bring his witnesses within the narrow exception to Rule 18.3 that it had previously recognized in Weaver , supra. Genuine rebuttal witnesses need not be disclosed before trial because neither the defense nor the State necessarily knows in advance of the need for such rebuttal testimony. Id. However, in Mitchell , the defense had planned to use the witnesses in his case-in-chief. Mitchell, supra. Since Mitchell knew in advance of the need for the witnesses' testimony, our supreme court held that the trial court did not err in refusing to give Mitchell the benefit of the rebuttal-witness exception to the discovery rule. Id.
Similarly, here, appellant knew in advance the need for the witnesses' testimony and had planned to use the witnesses in his case-in-chief until the trial court excluded their testimony as a discovery sanction. Appellant does not specifically identify anything about Ball's testimony of which he was not aware or could not have anticipated. The proffered testimony further shows that appellant intended to use Conners's and Sandefur's testimony to counter or impeach Ball's testimony about the events in the wake of having been raped by appellant. However, the mere fact that a defense witness may contradict a State witness does not make the witness a true rebuttal witness. Therefore, we cannot say under these facts that the trial court abused its discretion in refusing to give appellant the benefit of the rebuttal-witness exception to the discovery rule.
Affirmed.
Glover and Vaught, JJ., agree.
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Brown, J., agrees.
Whiteaker, J., concurs.
I join the majority opinion because I agree that the orders on appeal lack finality for multiple reasons: an unresolved motion for contempt, an unresolved motion for summary judgment, and an unresolved motion to add ATCO as a party. On remand, the parties can easily fix the current finality problem by adding ATCO as a party and obtaining a ruling on the pending motions for contempt and summary judgment. Doing so, however, will not resolve the more pervasive problems of proper parties, competing or conflicting court orders, and competing jurisdictions. It is axiomatic that the majority can only address the issue currently present to it; I must write separately to express my concerns that these more pervasive problems will need to be addressed before this court will ever be able to address the merits of this appeal.
First, are the proper parties before us? The majority correctly identifies this as one of the finality issues. I agree but see the issue as broader than just obtaining a ruling on an unresolved motion to add ATCO as a party. ATCO's status is a major source of our confusion. When this land dispute first arose in Scales v. Vaden , 2010 Ark. App. 418, 376 S.W.3d 471, ATCO filed a motion to intervene. The circuit court denied the motion when the appellees advised the circuit court that they were not claiming any of the lands their family had conveyed to ATCO in 1967. ATCO did not appeal the denial of its motion to intervene. When appellees sought to make ATCO a party in this current appeal, ATCO argued that it was too late to add it as a party. More importantly, ATCO's president indicated that it had sold some land to the Yancopin Hunting Club. It is not clear where this land is located or if it is being claimed by appellees. How can the circuit court address any issues concerning the land when one of the claimants to that land was not and is not now before the court in any meaningful sense? If ATCO's argument is persuasive that it is too late to add it as a party, would that same argument apply to the buyers who purchased land from ATCO? Likewise, ATCO, in its brief, states that Billy and Sammy Scales, two of the defendants in Scales , are both deceased. Does this moot appellees' claims for a writ of assistance and for contempt? Is there even a proper basis for holding ATCO in contempt? These issues have not been addressed in any meaningful sense in circuit court.
Second, are there issues of conflicting court orders from different, competing counties that may be affecting the same property? In this litigation, the parties are in a contest about property rights pertaining to land allegedly in Desha County. However, the same parties, ATCO and appellees, litigated title to land allegedly located in Arkansas County in which ATCO prevailed. Although appellees filed a notice of appeal from the Arkansas County litigation, they did not perfect their appeal and it was dismissed on ATCO's motion. In that case, the Arkansas County Circuit Court ruled that the land at issue in that case was located in Arkansas County and belonged to ATCO. What property, exactly, are the parties fighting about? There was testimony from surveyor Jim Cannatella in Scales in 2009 that some of the land in Desha County may no longer exist due to having been dissolved by the flow of the Arkansas River. He also noted this on the survey plat at the heart of the present case. He further noted that the land may have become part of Arkansas County by accretion. Are the parties both claiming the same property? Where is this property located? Is it in Arkansas County or is it in Desha County? It appears that each party has a court order ruling that certain lands belong to that party. Again, the question is how does the land at issue in the Arkansas County case relate, if at all, to this case? If both cases involve the same property, then does each court order create a cloud on the other party's title? If so, does the current litigation resolve the cloud without further litigation in both Arkansas County and Desha County?
Obviously, I see many pervasive problems in this litigation that will not be eliminated by simply curing the finality issues currently presented. Without these problems being addressed I doubt that the merits of this dispute can ever be reached on appeal.
The failure to appeal the denial of the motion to intervene and the basis for that denial-that appellees were not claiming ATCO's land-could both have implications going forward based on res judicata, collateral estoppel, and waiver, among other things. | [
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LARRY D. VAUGHT, Judge
David Vines appeals his conviction by a Faulkner County Circuit Court jury of one count of second-degree domestic battery. David challenges the sufficiency of the evidence, arguing that the circuit court erred in denying his motion for directed verdict. We affirm.
On November 22, 2016, Becky Vines was driving, and her husband, appellant David Vines, was riding in the passenger seat. The two were arguing. Becky testified at trial that David became angry, pulled the keys out of the ignition, and grabbed Becky's phone. When Becky stopped the car, David got out. Becky testified that she also got out of the car to try to retrieve her phone and keys from David. David then walked around the car and got into the driver's seat. Becky testified that she thought David was trying to steal her car, so she got into the passenger seat. Becky testified that David then started the ignition, slammed his foot down on the gas, and said, "Now, I'm going to kill us both." Becky testified that she begged David to stop the car, but he placed his right hand on top of the steering wheel and turned the wheel sharply to the right. He kept his foot on the gas and did not apply the brakes. The car left the road, hit several mailboxes and a culvert, rolled, and stopped near the tree line. Becky testified that as a result of the crash, she was severely injured-her left heel was crushed, her right shin bone was shattered, and her fifth lumbar vertebra was broken. She testified that she had endured several surgeries, had required twenty-four-hour care, had limited mobility, and was unable to work. Becky also testified that when the car came to a stop, David got out, walked around, and then came back to the car and said, "I'm sorry."
Kimberly and Michael Burns both testified that they witnessed the crash. The Burnses had been driving in separate cars behind Becky's car. Kimberly testified that she saw the man and woman switch places, with the man getting into the driver's seat. She testified that the car then sped off, causing the tires to squeal, veered off the road to the right, and hit the culvert. Kimberly testified that she never saw the car's brake lights come on. Michael testified that the car did not drift; it darted abruptly to the right.
Matthew Boyd and Dennis Robertson, the first two police officers at the scene, testified that Becky's car was "pretty far"
off the roadway and that when they arrived David was leaning into the passenger seat and appeared to be talking to the passenger. Both officers stated that although they observed the path the car had traveled off the road, there were no brake or skid marks or any other signs indicating any attempt to correct the car's path. Officer Boyd acknowledged that when a car slowly drifts off the road due to the driver's distraction, sometimes brake marks are not present.
David's counsel moved for a directed verdict at the close of the State's case, arguing that the State had failed to prove that David acted with the intent to cause serious physical injury. The court denied the motion. The defense rested and renewed its motion, which the court again denied. The jury convicted David of one count of domestic battery in the second degree, and this appeal follows.
This court reviews a motion for a directed verdict as a challenge to the sufficiency of the evidence, and we will affirm the circuit court's denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury's verdict. See Flowers v. State , 373 Ark. 127, 282 S.W.3d 767 (2008). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. In reviewing the sufficiency of the evidence, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State without weighing it against conflicting evidence that may be favorable to the appellant, and we affirm the verdict if it is supported by substantial evidence. Id.
David's only argument on appeal is that the court erred in denying his motion for a directed verdict because there was insufficient evidence that he acted with the purpose to cause physical injury. A person commits the offense of domestic battering in the second degree if "with the purpose of causing physical injury to a family or household member, the person causes serious physical injury to a family or household member." Ark. Code Ann. § 5-26-304(a)(1) (Repl. 2013). Here, Becky testified that David stated, "Now, I'm going to kill us both," before intentionally yanking the steering wheel to the right and driving the car off the road. This testimony was bolstered by the Burnses' eyewitness accounts that immediately after the couple changed seats in the car, the car sped off and darted abruptly off the road. The officers at the scene also observed no indications that David had attempted to brake or avoid the accident.
David argues that Becky's testimony was not credible because she had previously been convicted of filing a false credit-card application. David also argues that the officers' testimony that sometimes a person may distractedly or inadvertently drive off the road without braking or leaving skid marks indicates that the wreck may not have been purposeful. Neither of these arguments has merit. The jury heard testimony about Becky's previous conviction and was free to consider it when determining how much weight to give Becky's account of the accident. The Arkansas Supreme Court has previously held that variances and discrepancies in the proof go to the weight or credibility of the evidence, and such matters are for the fact-finder to resolve. Marts v. State , 332 Ark. 628, 644, 968 S.W.2d 41, 49 (1998). The trier of fact is free to believe all or part of any witness's testimony and may resolve any conflicts and inconsistencies; such matters are not for the court to resolve on a directed-verdict motion. Id. at 644, 968 S.W.2d at 49 ; see also State v. Long , 311 Ark. 248, 251, 844 S.W.2d 302, 304 (1992) (stating that "when a trial court exceeds its duty to determine the sufficiency of the evidence by judging the credibility of the evidence, it commits an error that requires correction"). Here, the court properly denied David's directed-verdict motion and allowed the jury to give each witness's testimony the weight and credibility it deemed appropriate.
Affirmed.
Glover and Hixson, JJ., agree.
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Thereafter, Northwest issued a subpoena duces tecum to WRMC requesting:
1. For each person treated, consulted or seen by Dr. Shaun Senter since the date he became employed by You until February 1, 2017, documents evidencing the following information:
• Their name;
• Date of each such medical service; and
• Each type of medical service performed or provided by Dr. Shaun Senter.
NOTE: Such documents do not have to be medical records as long as the produced documents contain the foregoing information. To the extent necessary, [Northwest] will agree to enter into an appropriate Protective Order addressing the production of these documents.
WRMC objected to Northwest's request, stating that WRMC and its patients were not parties to the litigation; the records sought contain health information that is protected under the Privacy Rule to the Health Insurance Portability and Accountability Act of 1996, 45 C.F.R. § 160, 164 ("HIPAA"); the identity of the patients of WRMC constitute trade secrets under applicable Arkansas law, and Northwest is a direct competitor within the same market; and the request is over broad, unduly burdensome, and oppressive.
On July 3, 2017, Northwest filed a motion to compel against Senter and WRMC. Senter's and WRMC's responses asserted that the requested information was protected by the physician-patient privilege. A motion-to-compel hearing was held on September 7, 2017. At the conclusion of the hearing, the circuit court orally granted Northwest's motion, finding that the physician-patient privilege "could be overcome" with an order of protection because the medical information sought by Northwest was essential to its cause of action against Senter. After finding that the privilege could be overcome, the circuit court then found that there would be no basis for the privilege if the nonparty patients' names were not identified.
But I don't see any basis for privilege if that person is never identified, how in the world you could say that their privilege was violated, if that person is never identified. You can't. Because who would come forward and say my privilege was violated and you say, how do you know? Well, I don't, but it could have been. I mean, I don't see any way, if you do it that way, because they'll never know who that person was.
On November 21, 2017, the circuit court entered an order granting Northwest's motion to compel. The order states:
2. For the reasons set forth from the bench at the hearing on the Motion, the Court finds that the Motion should be and hereby is granted as follows.
3. WRMC is to produce to Northwest the following: for the time period commencing from when Dr. Senter became employed by WRMC until January 19, 2017 ... a list of each type of procedure and medical service he has performed while with WRMC, and for each such procedure and service, the number of times he performed it.
4. In addition, for the time period commencing from when Dr. Senter became employed by WRMC until January 19, 2017, WRMC is to produce Northwest the following: a list of patients (whose names can be replaced by using a generic number in order to protect their identity) seen or treated by Dr. Senter during his employment at WRMC that he also saw or treated while he was employed with Northwest, and for each such patient, the type of procedure and medical service they received from Dr. Senter. In determining which patients have been seen or treated by Dr. Senter at both Northwest and WRMC during this time period, WRMC is to review its internal records and compare those against both the list of patients provided to it by Dr. Senter on the thumb drive as well as the list provided to WRMC by Boston Scientific (a copy of which has been produced by WRMC in response to Northwest's Subpoena).As an alternative to the foregoing, WRMC may elect to provide the following : a list of patients seen or treated by Dr. Senter during the first full year of his employment at WRMC.
5. All information and documentation produced pursuant to this Order is subject to the Protective Order entered in this case.
(Emphasis in original.) This appeal followed.
Rule 2(f)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that a petitioner may seek the supreme court's permission to file an interlocutory appeal from certain discovery orders involving the defense of a privilege. Entergy Ark., Inc. v. Francis , 2018 Ark. App. 250, at 2, 549 S.W.3d 362, 364. The rule provides that the supreme court's discretion to grant permission is guided by six factors, including (1) the need to prevent irreparable injury; (2) the likelihood that the petitioner's claim of privilege or protection will be sustained; (3) the likelihood that an immediate appeal will delay a scheduled trial date; (4) the diligence of the parties in seeking or resisting an order compelling the discovery in the circuit court; (5) the circuit court's written statement of reasons supporting or opposing immediate review; and (6) any conflict with precedent or other controlling authority as to which there is substantial ground for difference of opinion. Id. , 549 S.W.3d at 364 (citing Ark. R. App. P.-Civ. (2)(f)(1) (2017) ). If the supreme court allows the appeal, the petitioner must file a timely notice of appeal and an appellate record. Ark. R. App. P.-Civ. (2)(f)(3).
In the present case, WRMC filed a timely Rule 2(f) petition to appeal from the circuit court's order granting Northwest's motion to compel. On January 11, 2018, the supreme court granted permission and transferred the appeal to our court. Our jurisdiction, therefore, is pursuant to Rule 1-2(d) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, which provides that the supreme court may transfer to the court of appeals any case appealed to the supreme court. Entergy Ark. , 2018 Ark. App. 250, at 3, 549 S.W.3d at 364-65.
A circuit court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed on appeal absent an abuse of discretion that is prejudicial to the appealing party. Gerber Prods. Co. v. CECO Concrete Constr., LLC , 2017 Ark. App. 568, at 6, 533 S.W.3d 139, 143. To have abused its discretion, the circuit court must have not only made an error in its decision but also must have acted improvidently, thoughtlessly, or without due consideration. Id. , 533 S.W.3d at 143.
At issue in this case is Arkansas Rule of Evidence 503. Our supreme court has held that when it construes a court rule, the appropriate appellate review is de novo. Evins v. Carvin , 2013 Ark. App. 185, at 7, 426 S.W.3d 549, 554. Our court is not bound by the circuit court's interpretation of a statute or court rule, but "in the absence of a showing that the trial court erred in its interpretation ... that interpretation will be accepted as correct on appeal." Id. , 426 S.W.3d at 554.
When we construe a court rule, we use the same means and canons of construction that we use to interpret statutes. Id. , 426 S.W.3d at 554. In considering the meaning and effect of a statute or rule, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. , 426 S.W.3d at 554. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the drafting body. Id. , 426 S.W.3d at 554. In ascertaining the drafter's intent, we often examine the history of the statute or rule involved, as well as the contemporaneous conditions at the time of its enactment, the consequences of interpretation, and all other matters of common knowledge within the court's jurisdiction. Id. at 7-8, 426 S.W.3d at 554.
WRMC argues on appeal that it is entitled to claim the Rule 503 physician-patient privilege on behalf of the nonparty patients, that the privilege prohibits the discovery of its nonparty patients' medical records, and that Northwest's discovery requests in support of its case against Senter must yield to WRMC's patients' absolute privilege. WRMC also contends that none of the exceptions stated in Rule 503 apply and that the Rule 503 privilege was not waived. Finally, WRMC argues that Rule 503 and its more stringent patient-privacy protections trump federal HIPAA law.
With respect to WRMC's appeal, we hold that WRMC's first argument-whether it is entitled to claim the Rule 503 privilege-is dispositive.
Rule 503 provides:
(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.
(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.
Ark. R. Evid. 503(b), (c) (2017). The policy behind the physician-patient privilege is to encourage patients to communicate openly with their physicians and to prevent the physicians from revealing the infirmities of the patient. Finney v. State , 3 Ark. App. 180, 182, 623 S.W.2d 847, 848 (1981). The burden of showing that a privilege applies is upon the party asserting it. Kinkead v. Union Nat'l Bank , 51 Ark. App. 4, 11, 907 S.W.2d 154, 158 (1995).
Giving the words of Rule 503 their ordinary and usually accepted meaning in common language, we hold that the privilege does not apply in this circumstance because WRMC is not entitled to claim the privilege. Rule 503 expressly states that the privilege may be claimed by the patient or the patient's physician at the time of the communication. Ark. R. Evid. 503(c). The rule defines a "patient" as a person who consults or is examined or interviewed by a physician or psychotherapist, and it defines a "physician" as a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be. Ark. R. Evid. 503(a)(1), (2). These definitions do not include WRMC.
Further, WRMC did not argue below and does not argue on appeal that as Senter's employer it is entitled to assert the physician-patient privilege based on agency principles. Rather, WRMC concedes that the privilege belongs to the patient yet claims that it is the proper party to assert it on behalf of the patient. However, under Rule 503, it is not. The privilege belongs to patients and their physicians who are presumed to have the authority to claim the privilege. Ark. R. Evid. 503(b) ; McKenzie v. Pierce , 2012 Ark. 190, at 7, 403 S.W.3d 565, 570 (stating that the Rule 503 privilege belongs to the patient). Because WRMC is not entitled to claim the privilege on behalf of the nonparty patients and because it is not a "physician" under the rule, the privilege does not apply. Accordingly, we affirm the circuit court's order granting Northwest's motion to compel. While our holding is not the basis of the circuit court's ruling when it granted Northwest's motion to compel; nevertheless, we can affirm the circuit court's ruling on the basis that it reached the right result though it announced the wrong reason. Wyatt v. Wyatt , 2018 Ark. App. 177, at 9, 545 S.W.3d 796, 802 (citing Dunn v. Westbrook , 334 Ark. 83, 971 S.W.2d 252 (1998) ).
For these reasons, we affirm the circuit court's order granting Northwest's motion to compel.
Affirmed.
Glover and Hixson, JJ., agree.
Senter has filed an "appellee brief"; however, he has aligned himself with the position of WRMC-the appellant-in seeking reversal of the circuit court's order compelling discovery, claiming that he properly asserted the privilege on behalf of his patients. We decline to address his brief for two reasons. The first is because he did not file a notice of appeal as required by Arkansas Rule of Appellate Procedure 3(b) (2017), and he is, therefore, not an appellant in this case. Senter is an appellee, but he also failed to file a notice of cross-appeal as required by the same rule. Id. When there is no notice of cross-appeal, we will not consider the issue raised by an appellee. Egg City of Ark., Inc. v. Rushing , 304 Ark. 562, 566, 803 S.W.2d 920, 923 (1991) (citing Elcare, Inc. v. Gocio , 267 Ark. 605, 593 S.W.2d 159 (1980) ); Slaton v. Slaton , 336 Ark. 211, 219-20, 983 S.W.2d 951, 956 (1999) (declining to address appellee's claim for additional affirmative relief on appeal because the record contained no notice of cross-appeal filed by appellee). Second, Senter's "appellee brief" is untimely. His brief, which advances the arguments of the appellant WRMC, was filed one month after the due date for the appellant's brief. Instead, Senter filed his brief in accordance with the appellee's brief due date, which prevented Northwest from being able to respond to Senter's arguments and is inherently unfair. Ark. Cty. v. Desha Cty. , 342 Ark. 135, 139-40, 27 S.W.3d 379, 382 (2000) (striking appellee's brief as untimely because it failed to file either a notice of appeal or a notice of cross-appeal, and it filed a brief advancing the appellant's arguments too late to give the remaining appellee an opportunity to respond); Boyle v. A.W.A., Inc. , 319 Ark. 390, 392-93, 892 S.W.2d 242, 244 (1995) (same).
We acknowledge that WRMC's nonparty patients are unaware of Northwest's request for their medical records, and accordingly, these patients have not had the opportunity to assert the privilege. Importantly, our holding does not expose the nonparty patients to having their private medical information disclosed without appropriate protections in place. WRMC, Senter, and Northwest agreed at the motion-to-compel hearing that federal protections under HIPAA apply to the nonparty patients' medical information. The purpose of HIPAA is to increase privacy surrounding a patient's medical records. White v. State , 370 Ark. 284, 291, 259 S.W.3d 410, 415 (2007). While HIPAA seeks to establish medical-privacy standards, there are exceptions within the act. The disclosure of protected health information is permitted in the course of any judicial proceeding in response to an order of a court provided that the covered entity discloses only the protected health information expressly authorized by such order. 45 C.F.R. § 164.512(a), (e)(1)(i). As stated, the circuit court had previously entered a protective order related to the medical records at issue in this case.
Based on our holding that WRMC is not the entitled to claim the Rule 503 privilege, we need not address WRMC's other Rule 503 arguments. | [
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DAVID M. GLOVER, Judge
Kristen James appeals from the termination of her parental rights to PJ (D.O.B. 11-18-2006). In this appeal, she contends DHS did not prove a statutory ground for termination nor potential harm under the best-interest determination. We disagree and affirm.
Summary of Interim Trial Court Orders
The affidavit supporting the DHS petition for emergency custody included the following pertinent statements: On August 5, 2016, Cindy Edrington (DHS employee) received a phone call from Officer Jimmy Wicker of the Fayetteville Police Department. Wicker told her he was at the scene of a minor car accident. He reported that Kristen James, the driver, had left the scene of the accident and that Kristen's son, PJ, a woman named Shannon Spence, and Shannon's son, Dane, were still at the scene. Cindy arrived at the scene and noted the odor of intoxicants when she approached Shannon. DHS took an emergency 72-hour hold on both PJ and Dane because Shannon was not responding "appropriately" to questions, was apparently too intoxicated to care for the children, and no other legal caregiver was available for PJ. In the course of securing the situation, PJ told the family-service worker Kristen and Shannon had dropped PJ and Dane off at the movies and then went "to the bar to drink." The affidavit also listed the following DHS history with Kristen: 4/22/16 allegations of threat of harm with sons, PJ, TT, and CT as the victims-allegations were unsubstantiated; CT and TT, Kristen's two older sons were in their father's custody; "Through a DR referral, Kristen received services of home visits."
On August 8, 2016, an ex parte order for emergency custody was entered, followed by a probable-cause hearing and entry of a probable-cause order on August 10, 2016. Legal custody of PJ was placed with his paternal grandparents, Peggy and James Bledsoe, effective August 15, 2016. PJ's father is deceased.
On September 29, 2016, the adjudication and disposition order was entered, finding PJ dependent-neglected as a result of neglect and parental unfitness. The trial court specifically found Kristen was drinking alcohol and fled the scene of a car accident because she did not want to wait for the police to arrive and did not want to get arrested; she placed PJ in harm's way when she left him with Shannon Spence, who was too intoxicated to stand at the time she was arrested; Kristen either had a drinking problem or some other type problem because she thought this situation was everyone else's fault; and she was not credible. PJ was ordered to remain in the Bledsoes' custody.
The trial court ordered Kristen to do certain things, including cooperate with DHS and contact a designated family-service worker once a week; participate in individual counseling and follow recommendations; refrain from using illegal drugs/alcohol/abusing prescription meds; undergo a drug-and-alcohol assessment and follow recommendations; submit to weekly random drug screens with DHS observing production of the sample; complete twelve hours of parenting classes before December 26, 2016, and demonstrate improved parenting skills; obtain and maintain stable housing and employment; maintain a clean, safe home; demonstrate ability to protect PJ and keep him safe from harm; maintain contact with her attorney; submit to a hair-follicle drug screen within ten days (October 9, 2016) and not cut or dye her hair before the hair-follicle drug screen; and follow the case plan and court orders. Kristen was not ordered to pay child support at the time.
The February 3, 2017 review order found partial compliance with the case plan and court orders, but stated that Kristen had not exercised all available visits with PJ, missing approximately half of them; that she was having emotional problems; that she had completed the parenting classes, obtained a psychiatric evaluation, and undergone one round of counseling; but that she had not demonstrated she could properly and safely parent PJ. The review order further stated in part that Kristen was not to use any alcohol at all; that she was to undergo another round of individual counseling; that she was to submit to supervised random drug screens twice a month; that she was to obtain and maintain stable housing and employment; that she was to demonstrate the ability to protect PJ; and that she was to follow the case plan and court orders.
By order entered on March 17, 2017, the court appointed a special advocate for PJ. The record also contains a bench warrant for failure to appear dated June 7, 2017, and a charge for contempt of court dated September 28, 2016.
The June 8, 2017 review order found that Kristen had not complied with all of the case plan and court orders; specifically, she had not kept in weekly contact with DHS; had not provided DHS with documentation of her employment; had not submitted to all random weekly drug screens; had not attended every visit offered her; and had made "minimal progress towards alleviating or mitigating the causes of [PJ's] removal from the home and completing the court orders and requirements of the case plan." The court did find that Kristen was participating in individual counseling, and reunification was retained as the goal. The court ordered no contact between PJ and Kristen, concluding visitation was not in PJ's best interest because Kristen was "not making good choices" and was "not exercising all of her visitation opportunities currently." The court also stated that Kristen was not to attend PJ's sporting events. She was still not ordered to pay child support at that point.
The August 23, 2017 permanency-planning order continued custody of PJ with his grandparents, and the goal of the case was changed to authorize a plan for adoption, with DHS filing a petition to terminate Kristen's parental rights. The trial court found Kristen had complied with some of the court orders and case plan but not all. Specifically, she had completed two rounds of therapy and provided proof of discharge, and she had completed twelve hours of parenting classes. However, she had not maintained weekly contact with DHS; she had not submitted to all of the requested random drug screens; her July 2017 hair-follicle drug screen was positive for marijuana, and she had also dyed her hair prior to the test in violation of the court's order; she refused a drug screen on August 15, 2017, stating she could not produce a urine sample; and, as the court continued to find, she lacked credibility regarding her sobriety and stability. The court further found Kristen had not demonstrated she could protect PJ and keep him safe from harm; she could not meet his basic needs; she had not made significant, measurable, sustainable progress toward alleviating or mitigating the causes of PJ's removal and completing the court's orders and case-plan requirements. The court continued the no-contact order, stating it was not in PJ's best interest to have visits with his mom. The prior court orders were continued, and in addition, Kristen was ordered to begin paying monthly child support on September 1, 2017, and to have a drug screen that day. The court further found PJ had an "explicit interest" in staying with his grandparents and being adopted by them.
DHS filed a petition to terminate parental rights on August 28, 2017. The statutory grounds asserted were 1) PJ had been out of Kristen's custody for twelve months and despite meaningful efforts by DHS to rehabilitate her and correct the conditions that caused removal, those conditions had not been remedied by Kristen; 2) PJ had lived outside the home for twelve months and Kristen had willfully failed to provide significant material support or maintain meaningful contact with PJ; and 3) subsequent factors arose after filing the petition for dependency-neglect demonstrating placement in Kristen's custody would be contrary to PJ's health, safety, or welfare and despite the offer of appropriate family services, Kristen had manifested the incapacity or indifference to remedy the subsequent issues.
TPR Hearing
The termination hearing was held on December 7, 2017. The hearing was fact intensive with seven witnesses.
Courtney Willis (family-service worker "FSW"). The FSW testified that at no point in the case had DHS been able to place PJ on a trial home placement with Kristen because of continued safety concerns. She explained: the psychological evaluation reflected Kristen had a severe depressive disorder for which she was taking no medication; the home study reflected concerns about the persons with whom Kristen indicated she would leave PJ if necessary; Kristen had not participated in the case plan or court orders until the permanency-planning stage; at no point in the case had Kristen been in full compliance; and Kristen had not visited with PJ nor provided a reasonable excuse for not doing so to the point the trial court ordered the visits to stop because it was not in PJ's best interest to schedule them and have her not come.
The FSW testified Kristen was in partial compliance at the time of the termination hearing because she had completed a psychological evaluation, started participating in weekly drug screens, and completed counseling; however, the FSW stated she did not believe Kristen had demonstrated a pattern of sobriety nor made measurable, sustainable progress toward reunification with PJ and had not demonstrated the ability to protect PJ and keep him safe from harm. She recommended the termination of Kristen's parental rights so PJ could be adopted by his grandparents. The FSW testified PJ was "absolutely" an adoptable juvenile and that his paternal grandparents, with whom he had been staying, had been identified as wanting to adopt him.
On cross-examination, the FSW acknowledged the psychological evaluation recognized Kristen had strengths in her ability to provide for her child's needs but also pointed out the evaluation listed weaknesses in warmth, openness, sensitivity, and trust. She further recognized the counseling reports found Kristen had taken responsibility for her past actions but stated her opinion that PJ had been out of the home for over a year and needed permanency and stability, which the FSW did not believe Kristen could provide. She reiterated her concerns about Linda Youngman serving as a caretaker and also stated she had concerns about Kevin Warford, another person Kristen had listed as a caregiver in her plans for child care. She stated she had suspicions Kevin was living in Kristen's house.
Peggy Bledsoe (PJ's paternal grandmother). Ms. Bledsoe testified PJ was placed in her home in August 2016 and had lived there since that time. She stated he was "doing great," making straight A's, playing basketball, adjusting to his new living arrangements, and expressing happiness about not visiting with his mother. She stated her desire to adopt PJ if Kristen's parental rights were terminated.
Kevin Warford. He acknowledged Kristen had talked to him about possibly taking care of PJ on occasion but explained he had not yet done so. He denied ever living with Kristen, stating he lived with his elderly parents and took care of them. He also denied he and Kristen were in a relationship. He said he had been around Kristen and PJ in 2016, prior to PJ being taken by DHS, and PJ did not seem afraid of his mom. He commented Kristen was appropriate with PJ. He explained he saw Kristen every two to three weeks, and she did not appear to be under the influence of controlled substances, drugs, or alcohol when he was around her. He expressed his belief Kristen was a good mother and said there would be no reason for concern about PJ living with her. On cross-examination, Kevin stated he had been around Kristen about the same amount of time before PJ was taken into DHS custody, but he acknowledged he had not realized drugs and alcohol were a problem for Kristen until it was brought to his attention when PJ was taken into emergency custody.
Linda Youngman. She knew Kristen, who lived two doors down from her; nobody lived with Kristen. She acknowledged never having seen Kristen interact with PJ but stated Kristen was great with Linda's grandchildren and neighborhood children. She testified she saw Kristen almost daily and had never noticed her under the influence of drugs or drinking. She acknowledged she was listed in the home study as an area of concern but denied having a "true finding" for sexual abuse. She testified she would not be a danger to PJ. She further testified Kristen was an appropriate and good mother. She stated Kristen's house was spotless, and she would have no concerns about PJ returning to live with Kristen, even though she had never seen Kristen parenting him.
Kristen. She explained she does not have a boyfriend; no one else lives in the house with her; Kevin is one of her best friends, but they are not romantically involved. She testified she has been in counseling with Kathleen Housley for the past year and a half; she was still in counseling; she has completed all of the required sessions but continues to go to counseling once a week; she likes the counseling; it helps her; and she agreed with the counseling report that stated she had taken responsibility for her actions. Kristen stated she has been involved in the case all along, not just recently; she has had drug screens every week, not just recently; she has passed the drug screens and the times she has not, she returned to be retested; she acknowledged she had a positive result for "benzos" three weeks prior to the hearing but stated she did another test, which came out negative. She stated PJ had always made straight A's and been a good student. Kristen testified she was current on her child-support payments. She stated she lacked only two parenting classes to complete those requirements; she denied having a drinking problem; and she said she had taken a drug screen just before the hearing and it was negative. She stated she had changed to a daytime job and would not need a nighttime babysitter for PJ. She said she was employed full-time and had sufficient income for herself and PJ. Kristen explained that PJ's father died when PJ was about two and a half. According to Kristen, she looked for the grandparents so they could be part of PJ's life, and they saw him about four or five times before "all of this started," when PJ was about eight and a half. She indicated that was the first time they ever saw him. She stated: it was not in PJ's best interest for her rights to be terminated; he had been with her his whole life until he was taken into custody by DHS; she made a mistake, but she had learned from it, and she was not a bad mother.
Kristen confirmed PJ had two older half-brothers, TT and CT, both of whom lived with their father in Pea Ridge, and she had not had visits with them "since all this started." Upon questioning by the trial court, she clarified that her visits with her two other sons, TT and CT, had stopped six months prior to PJ being taken into DHS custody; and that their father, Terry, had gotten emergency custody of them in August 2015. She testified her visits with TT and CT had to be supervised; "they" said she is not a fit parent; she had been fighting with their father for custody "going on 14, 15 years now"; she lost custody of them before PJ went into foster care in August 2016; and her drinking started then.
Kristen also acknowledged that three and a half or four years ago, she was seeing a man named Travis Bell, who has since been convicted of first-degree murder and was serving a life sentence. According to her, he was a "good guy" when he was with her. She further acknowledged, however, he broke down the door to her house; PJ was not home when it happened but later found out about it; and the police got involved. She confirmed she had a hair-follicle test a year ago that was positive for marijuana, later acknowledging the date on the hair-follicle test was July 21, 2017, which would have been closer to four months ago. She stated PJ knew Bell was in prison, and she did not believe PJ was scared of him.
PJ. PJ testified he was in fifth grade and eleven years old. He expressed the desire to live with his grandparents. He stated before he started living with his grandparents, he was around drugs. He testified his mother always got arrested, and "she was crazy." He said she hung around bad people, would lie a lot, and left him different places because she said she was too drunk to take him with her. He testified he did better in school living with his grandparents than he did with his mother; he missed a lot of school when he lived with his mother. He said the reason he did not want to see his mother was because she had done a lot of bad things like drugs and hanging around bad people; she disappointed him; he did not like her saying she would come and then missing; and he did not like her lying to him.
Terry Thurman (CT and TT's father). He testified DHS had investigated him three times that were unfounded. He did not know of any times DHS had been called to investigate Kristen pertaining to CT and TT.
Kristen. She testified again, denying that: PJ made bad grades when he was with her; she lied to him; he missed a lot of school when he was with her; she took him around places where there were drugs (except when she took him around her family, which consisted of alcoholics and drug addicts, so she stopped taking him around them); and she was drunk in front of him (except for the time he was taken into emergency custody).
The order terminating Kristen's parental rights to PJ was entered on January 9, 2018. This appeal followed.
Discussion
Our review of cases in which parental rights have been terminated is de novo. Miller v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 396, 525 S.W.3d 48. The grounds for termination must be proved by clear and convincing evidence, which is such a degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Id. Our inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. Credibility determinations are left to the fact-finder. Id.
Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Id. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Id. In determining potential harm, which is forward-looking, the court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent's care and custody. Id. There is no requirement to establish every factor by clear and convincing evidence; after consideration of all factors, the evidence must be clear and convincing that termination is in the best interest of the child. Id.
I. Statutory Grounds Supporting Termination
The trial court concluded DHS proved three statutory grounds for termination: 1) PJ had been adjudicated dependent-neglected and had continued out of Kristen's custody for twelve months and despite a meaningful effort by DHS to rehabilitate Kristen and correct the conditions that caused removal, those conditions had not been remedied by Kristen. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a ) (Supp. 2017); 2) PJ had lived outside Kristen's home for a period of twelve months, and Kristen willfully failed to provide significant material support in accordance with her means or to maintain meaningful contact with PJ. Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a ) ; and 3) other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate placement of PJ in Kristen's custody is contrary to PJ's health, safety, or welfare and that, despite the offer of appropriate family services, Kristen has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate her circumstances that prevent PJ's placement in her custody. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a ).
Kristen challenges each of the three statutory grounds found by the trial court. We address only one, the "subsequent factors" ground, because we conclude the trial court did not clearly err in finding DHS proved this statutory ground, and proof of one statutory ground is sufficient to support this prong of a termination.
Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a ) provides:
That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances which prevent the placement of the juveniles in the custody of the parent.
A parent's failure to comply with the court's orders can serve as a subsequent factor upon which termination can be based. Bynum v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 471, 528 S.W.3d 859.
Here, in stating its findings in the termination order regarding the subsequent-factors ground, the trial court reviewed several subsequent factors, including the fact that Kristen had not maintained weekly contact with DHS, had not submitted to all requested random drug screens, had submitted a hair-follicle drug screen in July of 2017 that was positive for marijuana, had dyed her hair prior to the hair-follicle test in violation of the court's order not to do so, and had refused a drug screen on August 15, 2017, stating that she could not produce a urine sample. The court further found Kristen was not credible at the termination hearing when she testified she had complied with the case plan and court's orders and made progress. Because only one ground is necessary to terminate parental rights, Kristen's failure to comply with the trial court's orders constituted sufficient evidence under the statute. It is therefore unnecessary to discuss the other statutory grounds.
II. Best-Interest Determination -- Potential Harm
Kristen does not challenge the adoptability prong of the trial court's best-interest determination. Rather, she contends the trial court clearly erred in finding DHS had established the potential-harm prong. We disagree.
In assessing the potential-harm factor, the trial court is not required to find that actual harm would ensue if the child were returned to the parent or to affirmatively identify a potential harm. Bynum, supra. The potential-harm analysis is to be conducted in broad terms. Id. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold. Id. Our de novo review of the evidence before the trial court in this case does not convince us it was clear error to find potential harm if PJ were returned to Kristen's custody. Kristen's past behavior was a logical predictor of likely potential harm should PJ be returned to her care and custody.
Affirmed.
Vaught and Hixson, JJ., agree. | [
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SHAWN A. WOMACK, Associate Justice
Appellant Ben Grimes brings this appeal from the denial of his pro se petition for writ of habeas corpus. Grimes was convicted by a Jefferson County jury of first-degree murder, and he was sentenced to life imprisonment. We affirmed the conviction and sentence. Grimes v. State , 295 Ark. 426, 748 S.W.2d 657 (1988).
Grimes filed a pro se petition for a writ of habeas corpus in the county where he is incarcerated and alleged that he is being held pursuant to an invalid conviction because the State did not establish probable cause for his arrest and extradition from Virginia to Arkansas. Grimes asserted that the State failed to provide an affidavit establishing probable cause for his arrest, which, according to Grimes, violated his right to due process because, at the time of his arrest, there was no evidence that he had committed the crime. Finally, Grimes asserted that the issue of the lack of probable cause for his arrest was raised at his trial by his defense counsel in a motion to suppress his confession to the crime. Grimes makes the same assertions on appeal but adds allegations of ineffective assistance of counsel because counsel failed to raise the issue of an invalid arrest warrant on direct appeal. He also raises allegations that appear to challenge the sufficiency of the evidence supporting his conviction and otherwise bolstering his due-process argument.
The circuit court denied Grimes's petition because Grimes had failed to establish that his sentence was facially illegal or that the trial court lacked jurisdiction. A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Garrison v. Kelley , 2018 Ark. 8, 534 S.W.3d 136. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. Because the circuit court did not clearly err when it denied Grimes's petition for a writ of habeas corpus, we affirm.
A petitioner for a writ of habeas corpus who does not allege his or her actual innocence and proceed under Act 1780 of 2001, must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he or she is being illegally detained. Id. ; Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). If a petitioner in a habeas proceeding fails to raise a claim within the purview of a habeas action, the petitioner fails to meet his or her burden of demonstrating a basis for the writ to issue. Edwards v. Kelley , 2017 Ark. 254, 526 S.W.3d 825. Assertions of trial error and due-process claims do not implicate the facial validity of the judgment or the jurisdiction of the trial court. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503.
The petitioner bears the burden of showing that the face of the judgment at issue was invalid and must present evidence of probable cause to believe that he is being illegally detained. Story v. State , 2017 Ark. 358, 2017 WL 6376368. Here, Grimes has not submitted the judgment in support of his claim for habeas relief or any other evidence that the petitioner is being illegally detained, nor has Grimes made any allegations that the judgment was facially invalid. Rather, Grimes alleges for a second time that the trial court did not have jurisdiction because the arrest warrant was defective. See Grimes v. State , 2010 Ark. 97, 2010 WL 682187 (per curiam) (rejecting Grimes's habeas claim based on allegations of a defective arrest warrant). We have made clear that the court's jurisdiction to try the accused does not depend upon the validity of the arrest. Singleton v. State , 256 Ark. 756, 510 S.W.2d 283 (1974). A defendant, after having been fairly tried in a court of competent jurisdiction and found guilty of murder, is not entitled to be set free on the basis of some flaw in the manner of his arrest. Id. Because circuit courts have subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes, Grimes was tried in a court of competent jurisdiction. Love v. Kelley , 2018 Ark. 206, 548 S.W.3d 145.
Finally, Grimes alleges on appeal that the circuit court erred in not holding a hearing on his habeas petition. Our statutory scheme does not mandate a hearing on a habeas petition regardless of the allegations contained therein. Collier v. Kelley , 2018 Ark. 170, 2018 WL 2251147. A hearing is not required on a habeas petition when probable cause for issuance of the writ is not shown by affidavit or other evidence. Id. For the reasons set forth above, Grimes failed to present any evidence establishing probable cause for issuance of the writ, and he was therefore not entitled to a hearing.
Affirmed.
Grimes's allegations of ineffective assistance of counsel as well as allegations challenging the sufficiency of the evidence and bolstering his due-process claim will not be considered by this court as we do not consider arguments that have been raised for the first time on appeal. Johnson v. State , 356 Ark. 534, 157 S.W.3d 151 (2004). In any event, as set forth below, claims that go beyond the face of the judgment or do not implicate jurisdiction are not cognizable in habeas proceedings.
The appellee contends that the law-of-the-case doctrine should bar Grimes's claims. However, this court will consider additional facts raised in support of a jurisdictional argument; those arguments are not barred as law of the case. Anderson v. Kelley , 2018 Ark. 222, at 2 n.3, 549 S.W.3d 913, 915 n.3. As with coram nobis petitions, the abuse-of-the-writ doctrine may apply in habeas proceedings to subsume res judicata in cases in which the petitioner raises the same arguments addressed previously without bringing forward additional facts that would support his or her argument. Id. To the extent that Grimes has alleged additional facts in support of his jurisdictional argument, those facts were not sufficient to reach a different result, and the habeas petition was an abuse of the writ. Id. | [
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BART F. VIRDEN, Judge
Travis Lynn Wyly appeals the Pulaski County Circuit Court's denial of his motion to terminate his obligation to register as a sex offender. On appeal, Wyly contends that the circuit court erred by finding that Ark. Code Ann. § 12-12-919(a)(3) (Supp. 2017) precludes Wyly's eligibility to seek removal from the sex-offender registry. Wyly also asserts that, as applied to him, the statute violates his federal and state constitutional due-process guarantees. We affirm.
I. Factual History
On September 22, 2000, Wyly pleaded guilty to four counts of third-degree carnal abuse against a single victim less than sixteen years of age in case number CR-99-2839. The abuse occurred from June 1, 1997, to July 31, 1998, and from May 1, 1998, to September 30, 1998. On the same day, Wyly pleaded guilty to one count of first-degree sexual abuse against a second victim less than fourteen years of age, and in that instance the abuse occurred between January 1, 1998, and June 16, 1999. On October 4, 2000, Wyly was sentenced concurrently to five years in the Arkansas Department of Correction with two years suspended, and he was ordered to register with the sex-offender registry. In April 2001, the General Assembly enacted Act 1743, which amended Ark. Code Ann. § 12-12-909, adding a lifetime obligation to register as a sex offender when an offender is "found to have been adjudicated guilty of a second or subsequent sex offense under a separate case number, not multiple counts on the same charge."
On October 2, 2017, Wyly moved to terminate his lifetime obligation to register as a sex offender. In his motion, he argued that Ark. Code Ann. § 12-12-919 provides that fifteen years after release from prison, the court may terminate the obligation to register as a sex offender. Wyly asserted that he was not likely to reoffend and that he had been fully rehabilitated. Wyly contended that Ark. Code Ann. § 12-12-919(a)(3) encouraged prosecutorial "game playing" in deciding whether to charge an offender under one or multiple case numbers. Wyly also argued that retrospective application of the amended statute violates his due-process rights. In an amended response, the State asserted that Wyly has a lifetime obligation to register because he pleaded guilty in two separate cases involving different victims.
The circuit court held a hearing on the matter, and the State argued that according to the statute, lifetime registration is required for a sex offender who has pleaded guilty or has been found guilty of a second or subsequent sex offense under a separate case number but not for someone who has been convicted of multiple counts on the same charge. Wyly responded that Ark. Code Ann. § 12-12-909(a)(3), which was enacted after he had entered his pleas, applies to a person who has committed an offense after he or she has been placed on the registry for the first offense. Wyly explained that his case is distinguishable from our recent decision in Ray v. State , 2017 Ark. App. 574, 533 S.W.3d 587, in which we upheld retroactive application of the amended statute. Wyly argued that in Ray , two pleas on multiple charges involving one victim were entered in two different counties on two different days, whereas he entered his pleas on the same day, albeit under different case numbers. Wyly argued that because the statute was not in effect at the time he entered his pleas, he had no way of avoiding the impact of the statute "by just arranging for all, you know, for both offenses to be under the same case number."
Wyly further asserted that although it is well-settled law that the registry requirement for sex offenders is not punitive and not subject to ex post facto analysis, there are special cases in which retroactive application of noncriminal statutes can amount to a due-process violation. Wyly cited Landgraf v. USI Film Products , 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) arguing that "we would submit under the particular facts and circumstances of this case the retrospective application would, in fact, violate federal and state constitutional rights of due process." The circuit court disagreed and stated from the bench, "I think Ray v. State is dispositive of this. I don't think you have, I don't think you can apply it to the statute."
On February 21, 2018, the circuit court entered an order denying Wyly's motion to terminate his obligation to register as a sex offender. Regarding the application of Ray to the instant case, the court found that
[t]he Defendant attempts to distinguish his situation from that in Ray v. State , 2017 Ark. App. 574, 533 S.W.3d 587. He argues that his being charged in two separate cases could be construed as a type of "game-playing by the prosecutor in deciding whether to charge under one case number or not." The Defendant's argument is not convincing. Though the Defendant pleaded to both cases simultaneously and received concurrent sentences, this was not an issue of the prosecutor seeking "game playing." The Defendant was charged with two separate criminal informations filed over a month apart, there were two victims, and the date ranges alleged for the underlying conduct was different. These were not multiple counts on the same charge, and it is clear to this Court that the legislature intended lifetime registration to be the result of conduct such as Defendant's.
Wyly timely filed his notice of appeal.
II. Standard of Review and Applicable Law
This court reviews both the circuit court's interpretation of the constitution as well as issues of statutory interpretation de novo. Arnold v. State , 2011 Ark. 395, at 4, 384 S.W.3d 488, 493. Arkansas Code Annotated section 12-12-919(b)(1)(A)(i) provides that fifteen years after having been released from incarceration, a sex offender may apply for an order to terminate the obligation to register. The court shall grant an order terminating the obligation to register upon proof by a preponderance of the evidence that the applicant has not been adjudicated guilty of a sex offense for fifteen years and is not likely to pose a threat to the safety of others. Ark. Code Ann. § 12-12-919(b)(2). However, this process does not apply to sex offenders who are required to make lifetime registration under Ark. Code Ann. § 12-12-919(a), including a sex offender who "[h]as pleaded guilty or nolo contendere to or been found guilty of a second or subsequent sex offense under a separate case number, not multiple counts on the same charge." Ark. Code Ann. § 12-12-919(a)(3). The lifetime-registration requirement in section 12-12-919 was added to the statute by Act 1743 of 2001, and the legislature expressly provided that the registration requirements applied to offenders adjudicated guilty of a sex offense on or after August 1, 1997. Before the amendment, the statute provided a method by which all sex offenders could seek termination of the obligation to register.
III. Points on Appeal
Wyly raises two points for reversal. First, Wyly argues that the circuit court erred when it determined that Ark. Code Ann. § 12-12-919(a)(3) precluded his eligibility to remove his obligation to register as a sex offender. Specifically, Wyly asserts that Ray , supra , can be distinguished from the instant case and that our holding in Ray is an absurd result and should be overturned. Second, Wyly contends that the lifetime-registration provision as applied to him violates federal and state constitutional due-process guarantees. Wyly's arguments are not well taken, and we affirm.
A quick review of Ray is helpful to our analysis. Wayne Travis Ray sexually abused a single victim (aged seven to eleven years old) over a period of years. During this time, Ray moved from Saline County to Pulaski County. In 1999 in the Saline County Circuit Court, Ray pleaded guilty and was convicted of one count of first-degree sexual abuse. A few days after this conviction, he was convicted in the Pulaski County Circuit Court of a separate instance of the same offense against the same victim. The sentences in those cases were ordered to run concurrently. In April 2016, Ray filed a petition to terminate his obligation to register as a sex offender, alleging that he had been released from the Arkansas Department of Correction on November 1, 2000, had not been found guilty of a sex offense during the fifteen years since his release, and was not likely to pose a threat to the safety of others. The circuit court denied Ray's petition because he had pleaded guilty to sex offenses in two separate cases, which triggered the lifetime-registration requirement. The circuit court found that Ark. Code Ann. § 12-12-919(a)(3) was not an unconstitutional ex post facto law because it was regulatory in nature and because there was a rational basis for the statute. Our court upheld that decision.
As Wyly states in his brief, "[a] literal application that leads to absurd consequences should be rejected where an alternative interpretation effects the statute's purpose." Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs., Inc. , 2011 Ark. 501, at 8, 385 S.W.3d 797, 802, (citing Curry v. Pope Cty. Equalization Bd. , 2011 Ark. 408, 385 S.W.3d 130 ).
Wyly argues that Ray should be overturned because the legislature clearly intended to apply Ark. Code Ann. § 12-12-919(a)(3) only to people "who committed second offense after having been convicted of a first offense." To interpret the statute otherwise, he argues, leads to an absurd result. He is incorrect. In Ray , we held that
[t]he legislative intent behind the sex-offender registry is to protect the public from sex offenders, whom the legislature has found to pose a high risk of reoffending after having been released from custody. Ark. Code Ann. § 12-12-902. Individuals convicted of a subsequent sex offense under a second case number have committed more than one sex crime, and the General Assembly could have concluded that these individuals are more likely to reoffend.
Ray , 2017 Ark. App. 574, at 5-6, 533 S.W.3d at 590. We are not convinced by Wyly's argument that the General Assembly intended to identify sex offenders with subsequently timed convictions-and not individuals convicted of subsequent sex offenses-as likely to reoffend and subject to lifetime registration. The plain language of the statute dictates that a sex offender who has pleaded guilty to a second sex offense under a separate case number-exactly the case here-must register for his or her lifetime. The circuit court's interpretation of Ark. Code Ann. § 12-12-919 (a)(3) and its application of the statute to Wyly fulfills the legislative intent to protect the public from sex offenders who have been deemed more likely to reoffend because they have committed more than one offense and were prosecuted under different case numbers.
While the facts in Ray are distinguishable from those in the instant case, we agree with the State that "[t]his is a distinction without a difference." We find no error in the circuit court's decision.
Wyly also argues that the "vagaries of case numbering practices" should not determine application of Ark. Code Ann. § 12-12-919(a)(3). Wyly asserts that if he had known about the lifetime-registration requirement, he would have "arranged" to have the two victims' cases combined under the same case number. His argument is not well taken. This court settled the "underinclusiveness" issue in Ray :
The underinclusiveness of a particular provision does not make the provision unconstitutional. Landers v. Stone , 2016 Ark. 272, 496 S.W.3d 370. Thus, Ray's argument concerning sex offenders convicted of offenses against multiple victims under one case number does not render the legislature's chosen classification unconstitutional.
Ray , 2017 Ark. App. 574, at 6, 533 S.W.3d at 590.
Here, Wyly's assertion that the prosecutor or court may choose to combine multiple charges under one case number for some offenders and not others does not convince us that the provision is unconstitutional.
We now turn to Wyly's assertion that the lifetime-registration provision, as applied to him, violates federal and state constitutional due-process guarantees because it subjects him to "additional penal consequences." The legislature intended the amendment to retroactively apply to those convicted of a sex offense on or after August 1, 1997; thus, the remaining question is whether the amended statute violates due process as applied to Wyly. Landgraf v. USI Film Prods. , 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). We hold that it does not.
Wyly acknowledges that our supreme court has held that the registration requirement is not punitive. See Parkman v. Sex Offender Screening & Risk Assessment Comm. , 2009 Ark. 205, 307 S.W.3d 6. Instead, Wyly asserts that the amendment to the statute removes his right to petition the court to end his registration requirement. Wyly extensively cites Landgraf , supra , in which the Supreme Court held that
[t]he Due Process Clause also protects the interest in fair notice and repose that maybe compromised by retroactive legislation; a justification sufficient to validate a statute's prospective application under the Clause "may not suffice" to warrant its retroactive application. Usery v. Turner Elkhorn Mining Co. , 428 U.S. 1 [96 S.Ct. 2882, 49 L.Ed.2d 752] (1976).
These provisions demonstrate that retroactive statutes raise particular concerns. The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals.
511 U.S. at 266-67, 114 S.Ct. 1483.
We agree that Landgraf is instructive; however, the language we find applicable here is the Supreme Court's holding that "[a] statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment, or upsets expectations based in prior law. The court must ask whether the new provision attaches new legal consequences to events completed before its enactment." Id. at 270, 114 S.Ct. 1483.
Wyly argues that when he pleaded guilty to the charges, there was no lifetime-registration requirement for offenders with subsequent convictions; thus, the lifetime-registration requirement is a new legal consequence of being convicted under two case numbers. We disagree. The lifetime-registration amendment may have upset Wyly's expectation that he would be able to petition for removal from the registry, but it does not impose a new legal consequence that violates due process. The requirement that Wyly must register as a sex offender was in effect when he was convicted, and removal of the requirement to register was never guaranteed. Furthermore, the legislature did not "sweep away settled expectations suddenly and without individualized consideration." Id. at 266, 114 S.Ct. 1483. Instead, the legislature removed the possibility that sex offenders it considers most likely to reoffend may petition to be removed from the registry. The amended statute is not a tool for retribution against an unpopular group but a means of protecting the public. See Parkman , supra ; Kellar v. Fayetteville Police Dep't , 339 Ark. 274, 5 S.W.3d 402 (1999).
Affirmed.
Harrison and Klappenbach, JJ., agree.
Our state constitution provides that the prosecutor has the authority to file a criminal information. Ark. Const. amend. 21, § 1. See Simpson v. State , 310 Ark. 493, 497, 837 S.W.2d 475, 478 (1992). When offenses are based on the same conduct or a series of acts connected together or constituting parts of a single scheme or plan, they may be joined for trial. McArdell v. State , 38 Ark. App. 261, 833 S.W.2d 786 (1992). | [
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ROBERT J. GLADWIN, Judge
Appellant Steven Anthony Straub appeals from an order of the Craighead County Circuit Court revoking his probation. On appeal, Straub challenges the sufficiency of the evidence supporting the October 5, 2018 revocation. We affirm.
I. Facts
On March 29, 2012, Straub pleaded guilty to criminal mischief and breaking or entering in Craighead County Circuit Court No. 16JCR 2009-694, for which he received a suspended sentence. A petition for revocation was filed on May 15, 2013, and Straub pleaded guilty to nonpayment, failure to report, and departing the state without permission and was resentenced to sixty months' probation on July 31, 2014. An order setting out the conditions of Straub's probation was filed of record that same date.
On January 7, 2016, the State petitioned to revoke Straub's probation on the basis of pending criminal charges in Louisiana, as well as for leaving Arkansas without permission and failing to pay court-ordered fines and restitution. The petition was amended on September 25, 2018, to add an additional basis for revocation-the failure to lead a law-abiding life because of a new charge of theft by receiving (jewelry).
At the hearing on October 5, 2018, the State announced it would not be pursuing revocation on the pending criminal charges in Louisiana but would continue to pursue revocation on the other grounds alleged. Evidence was submitted, and witness testimony was taken by both parties at the hearing.
Kayla Sain, Straub's probation officer, explained that she "inherited" Straub's case from two previous probation officers. She testified to having a record of Straub's meeting with his prior supervising officer in 2014, but she could not find any documentation of a probation transfer to Louisiana. Sain had documentation of a request to transfer Straub's probation to Louisiana in 2012, but she testified from her case file and had no independent knowledge of the situation. Sain also testified about Straub's payment history, stating that Straub was delinquent in his payments of fines, fees, and costs.
Martha Carey testified that she had hired Straub to help her move several items into her house, only to realize the next day that her house had been burglarized and that many personal items had been stolen, including a distinctive bag and several pieces of jewelry. Carey described the bag as very distinctive because it was a zippered silver bag with several different compartments. She further testified that she was shown pictures of jewelry by police officers that she identified as belonging to her.
Detective Jacob Daffron explained that he was the detective assigned to the burglary. He testified that he found the bag and some of the jewelry in question at the home of Enano Goza and Sabrina Quirrels, a residence where Straub admitted staying.
Ms. Quirrels testified next, explaining that Straub had been staying at her house and that he had given her some jewelry to pawn. Mr. Goza testified next and stated that he had pawned some jewelry given to him by Straub and, by doing so, was subsequently convicted of theft by receiving. The State then rested its case-in-chief.
Straub testified on his own behalf, and he indicated that he is not from Arkansas and was only briefly here around the time of his initial arrest. He testified that his prior probation officer had authorized his return to his home state of Louisiana. Straub stated that while he was there, he had been homeless and unable to obtain and maintain employment due, in part, to his status as a felon and also his lengthy incarceration associated with this case. Straub stated that he could not make payments because he was unable to do so.
At the conclusion of the hearing, the circuit court found Straub's testimony not credible and that the State had met its burden of proof and had presented sufficient evidence of Straub's inexcusable violation of the terms and conditions of his probation. Specifically, the circuit court found that Straub had violated his probation by leaving the state of Arkansas without permission, committing the crime of theft by receiving, and not making court-ordered payments. He was sentenced to sixty months in the Arkansas Department of Correction followed by forty-eight months' suspended imposition of sentence pursuant to a sentencing order filed on October 5, 2018. A timely notice of appeal was filed on November 2, 2018.
II. Standard of Review and Applicable Law
Pursuant to Arkansas Code Annotated section 16-93-308(d) (Supp. 2017), a circuit court may revoke a defendant's probation at any time prior to the expiration of the period of probation if a preponderance of the evidence establishes the defendant inexcusably failed to comply with a condition of the probation. Clark v. State , 2019 Ark. App. 158, 573 S.W.3d 551. The State's burden of proof in a revocation proceeding is less than is required to convict in a criminal trial, and evidence insufficient for a conviction at a criminal trial may be sufficient for revocation. Id. When the sufficiency of the evidence is challenged on appeal from an order of revocation, the circuit court's decision will not be reversed unless it is clearly against a preponderance of the evidence. Id. The appellate court defers to the circuit court's superior position in evaluating the credibility and weight to be given testimony. Id. To sustain a revocation of probation, the State need show only that the defendant committed one violation. Vangilder v. State , 2018 Ark. App. 385, 555 S.W.3d 413.
III. Analysis
Although Straub did not move for a directed verdict or dismissal at the close of the State's case-in-chief, that does not prevent appellate review of the sufficiency of evidence in probation-revocation cases. It is well settled that a defendant may challenge the sufficiency of the State's proof on appeal from a revocation proceeding in the absence of a directed-verdict motion or motion to dismiss. Brown v. State , 2016 Ark. App. 403, 500 S.W.3d 781.
Also, the State argues that we need not address the merits of Straub's argument because he does not challenge the failure-to-report basis, but we disagree. Although Straub does not specifically number that particular basis for revocation in his brief, he does briefly address it as part of his argument regarding leaving Arkansas without permission. We acknowledge that the circuit court did find his failure to report as a basis for the revocation despite its not being in the petition to revoke. However, because the evidence supporting at least one of the other three grounds that were included is sufficient, we affirm the revocation.
As noted above, only one violation is required to sustain a revocation. Vangilder , supra. The third ground for revocation relied on by the circuit court was Straub's nonpayment of restitution, costs, and fees. Arkansas Code Annotated section 5-4-205(f) (Supp. 2017) provides that when a defendant fails to pay court-ordered restitution, a court may revoke probation or suspension "if the defendant has not made a good faith effort to comply with the order."
In this case, we hold that the circuit court did not err in finding that Straub had violated the conditions of his probation by not making required payments. Our case law holds that when the alleged violation is a failure to make payments as ordered, it is the State's burden to prove that the failure to pay was inexcusable; once the State has introduced evidence of nonpayment, the burden of going forward shifts to the defendant to offer some reasonable excuse for failing to pay. Alexander v. State , 2018 Ark. App. 466, 561 S.W.3d 744. The shifting burden draws out the reason for nonpayment, and the defendant may not "sit back and rely totally upon the trial court to make inquiry into his excuse for nonpayment." Id. at 4, 561 S.W.3d at 746 ; see also Hanna v. State , 2009 Ark. App. 809, at 5, 372 S.W.3d 375, 379 (citing Brown v. State , 10 Ark. App. 387, at 389, 664 S.W.2d 507, 508 (1984) ).
Here, the State introduced testimony that Straub had not paid fines, fees, and costs as directed. Straub testified as to why he had not made payments-noting his status as a felon, his homelessness, and the extended time that he spent incarcerated. He claims that the State offered no further evidence to indicate that his nonpayment was willful and inexcusable. Accordingly, Straub maintains that it was error for the circuit court to revoke his probation and suspension on the ground of nonpayment.
We disagree. Straub's probation officer, Ms. Sain, testified that Straub was to make monthly payments on fines and restitution to the sheriff's office and monthly supervision fees, but he had paid only two months of those supervision fees, or $ 70. Straub testified that he had paid probation fees "a couple of times" but offered no testimony of ever having paid any of the $ 1788 in court-ordered restitution, court costs, and fees that Ms. Sain testified he had accumulated.
Although Straub argues on appeal that the circuit court was required by statute to consider certain factors regarding his ability to pay and that such inquiry is "fact intensive," once the State established a record of nonpayment, Straub had the burden of demonstrating an inability to pay or some reasonable excuse for his failure to pay. Alexander , 2018 Ark. App. 466, at 4, 561 S.W.3d at 746. He failed to do so.
Instead, Mr. Goza, an acquaintance of Straub's, testified that he had worked with Straub in the past and that Straub had "always paid his way." Straub further acknowledged that he had been employed at times during the term of his probation, including working jobs in Louisiana and for a masonry contractor for a few months in Arkansas.
The circuit court specifically found that Straub had no reasonable excuse for nonpayment, acknowledging that the State had the burden of establishing that Straub's failure to pay was willful "and, obviously, while you're in jail you don't have the ability to pay on fines, costs and fees[.]" However, the court then found that "nothing ha[d] been paid on fines, costs and fees, and that, at least some of the time, Mr. Straub was out [of jail], he had the ability, by part-time jobs or otherwise, to make some payments, $ 10, $ 15, $ 25, whatever, but that has not been done," and "there were opportunities for him to pay probation fees, but he didn't[.]" The circuit court concluded by stating that "by a preponderance or a greater weight of the evidence, his failure to pay something on the fines, costs and fees-and-and something additional on the probation fees, was willful and is a basis for revocation."
The circuit court, as trier of fact, was entitled to assess Straub's explanation for his failure to pay and conclude that his nonpayment was not excusable. We defer to the circuit court and hold its finding is not clearly against the preponderance of the evidence. Because the State need only show that the appellant committed one violation in order to sustain a revocation, we decline to address the other bases for the court's revocation. See Hart v. State , 2017 Ark. App. 434, 530 S.W.3d 366.
Affirmed.
Switzer and Hixson, JJ., agree.
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WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court's order granting the appellees' rescission counterclaim, thereby returning to them their $ 96,000 down payment for the subject property, a gas station. On appeal, appellant argues that the circuit court clearly erred in finding that it committed (1) fraud by omission by failing to disclose (a) unpaid real estate taxes and (b) the real status of the inoperability and disrepair of the gas pumps, and (2) misrepresentation. Additionally, it argues that it properly terminated the contract. We affirm.
On August 30, 2017, appellee Daljit Singh met with Noor Ali as representative for AAN, Inc. (AAN), at the gas station to discuss a potential sale or lease of the same. Singh and Sohail Cheema-who was the assistant to appellant's owner, Mohammad Lone, and the agent for appellant and AAN-met on September 1, 2017. During that time they agreed to the general terms of contract for the sale of the gas station. Singh made an earnest money deposit in the amount of $ 16,000 to appellant, through Cheema, at that meeting.
The parties entered into a contract on September 8, 2017. The gas station was purchased "as it is[.]" It was purchased for $ 640,000 with a down payment of $ 96,000 acknowledged as having been received by appellant, thereby leaving a balance of $ 544,000 remaining. The remaining balance was to be paid in installments of $ 4,889.63 monthly through October 1, 2032. One provision in the contract stated:
The [appellees agree] to keep and maintain the premises and the improvements thereon in a clear and orderly condition at all times, free of waste or destruction, and to make all necessary repairs thereon to keep the premises in a good and habitable condition at all times during this contract. The standard of maintenance to which the [appellees agree] to maintain the premises is the highest state of repair, which the same has been or may be at any time during the period of this contract.
A provision on taxes stated that "[t]he Seller agrees to pay all taxes that come from this contract date forward for the year 2017 on the aforesaid property, and the Buyer agrees that the Buyer will pay the taxes for all subsequent years thereon." The contract's default provision stated that:
In the event that the Buyer should default in making the payment or in keeping the covenants on Buyer's part to be made and kept hereunder, and should a default in the making of any payment continue for a period of thirty (30) days from the date when such payment hereunder is due, the Seller may, at Seller's option, declare this contract to be thereupon terminated and forfeited by giving notice of Seller's election so to do to the Buyer at Buyer's telephone book or last known address. Thereupon, Buyer agrees that Buyer will promptly and forthwith vacate the premises and return possession thereof to the Seller without additional notice. To accommodate the agreement herein made to that effect, the Buyer hereby waives any and all notice to which Buyer may be entitled under the Laws of the State of Arkansas as a prerequisite to a suit against the Buyer for the unlawful detention of the property. Upon such a default by the Buyer and an election of the Seller to terminate this contract, the amounts theretofore paid by the Buyer to the Seller shall be retained by the Seller as liquidated damages for the breach of this agreement by the Buyer and as a reasonable rental for the property during the period of time when the same has been occupied pursuant to this contract by the Buyer.
On February 8, 2018, appellant filed a complaint in unlawful detainer asserting that it received appellees' last payment in November 2017, and that appellees had since "unlawfully failed and refused to quit possession" of the property despite being requested to do so. It also asserted that appellees had failed to operate its business in a proper manner. Accordingly, appellant sought monetary damages in the form of payment of the monthly installments for all months appellees remained in possession of the property. Appellant also sought reimbursement of taxes it had to pay on the property that it asserted appellees were responsible for and a writ of possession.
The appellees filed a counterclaim on March 16, 2018. The following facts were asserted therein. At a September 2, 2017 visit to the gas station, Singh learned that gasoline was unavailable for sale at the gas station because the gasoline distributor had "cutoff" gas distribution for "several months due to various issues including the condition of the gasoline storage tanks and gas pumps." Singh "immediately" contacted appellant and requested the return of his earnest money, but was assured by Cheema that "all gasoline and equipment issues would be addressed to Singh's satisfaction[;] Cheema would not return the earnest money[.]" On September 7, 2017, Singh met with Lone who verbally assured Singh that appellant would install new gasoline tanks and pumps within two months. Regarding operation of the gas station:
On October 8, 2017, [DJ Mart,] LLC began operation and management of the convenience store. The monthly payment from LLC to [appellant] was made on October 4, 2017. LLC accepted deliveries of gasoline from the Citgo petroleum supplier although only one tank of the four on the property could hold gasoline. LLC was waiting on the two-month period [appellant] represented would be required in order to replace the damaged or unserviceable equipment.
On November 15, 2017, DJ Mart, LLC (DJ Mart), contacted Lone concerning replacing and/or repairing the equipment, for which DJ Mart had obtained an $ 85,000 estimate. Appellant, through Lone, denied having agreed to repair or replace the equipment. Singh, on behalf of DJ Mart, demanded that appellant "fulfill its contractual obligation to provide tank replacement/repair and pump replacement." Appellant refused. Singh, again on behalf of DJ Mart, requested repayment of the $ 96,000 down payment and rescission of the contract; appellant refused.
Thereafter, on or about December 15, 2017, DJ Mart received notice that the gas station was delinquent in payment of taxes for the years 2013 through 2015, totaling $ 21,507.24. The property was scheduled to be sold at public auction on April 10, 2018. Singh contacted Cheema regarding the notice and was advised that appellant would pay the delinquency. Singh advised that no further payments would be made until the delinquency was paid, asserting that the delinquency was a default under the contract. DJ Mart had already made its December payment by the time it received the notice and appellant had cashed that payment. No additional payments were made.
Appellees asserted that appellant "[at] no time" advised that it intended to terminate the contract and appellees denied that appellant ever made a demand that DJ Mart vacate the property. Appellees filed an objection upon receipt of appellant's complaint and deposited payment for the months of January, February, and March with the clerk of the court.
Based on these asserted facts, appellees counterclaimed for fraud stating that all gasoline storage tanks and gas pumps being "in good working order" was an issue "critical to the buying decision" of appellees "as the cost for repair or replacement of the gas tanks and fuel pump together with any environmental damages associated with the equipment would be a substantial expense." At the time of the complaint, taxes were still outstanding and sale of the property at public auction was still scheduled. Appellees therefore asserted they were entitled to rescission of the contract and monetary damages, including return of the down payment and reimbursement of $ 4,900 spent to repair damage to the roof. Appellees also answered appellant's complaint on March 16, 2018, requesting that appellant's complaint be dismissed.
The circuit court entered an order on March 19, 2018, pursuant to the agreement of the parties, ordering appellees to surrender possession of the property on or before March 31, 2018. A writ of possession was ordered to be issued by the clerk of the court on or after April 2, 2018, at the request of appellant. The funds appellees had previously deposited with the clerk of the court-$ 15,646.81-were ordered to be paid over to appellant immediately.
On March 26, 2018, appellant answered the appellees' counterclaim asserting that paragraph six of the contract obligated appellees to maintain and repair the premises and improvements thereon. It then stated that "[t]he contractual agreement of DJ Mart, LLC to maintain the premises and improvements thereon was subsequent to the alleged fraudulent representations in the complaint, and precludes finding a fraud or misrepresentation on the part of [appellant]." It then went on to affirmatively state that the contract represents the entire agreement between the parties and asserted that appellees breached the contract first. It sought dismissal of the counterclaim.
A hearing in the matter was held on September 4, 2018, following which the circuit court entered an order on September 10, 2018. The order noted that appellant "stipulated that it was not seeking any additional damages" from appellees since the entry of the circuit court's March 19, 2018 order. Appellant also stipulated that it had "no cause of action against the individual defendant, Daljit Singh," and therefore sought that Singh be dismissed from the suit with prejudice.
The circuit court noted that it ordered the sale of the subject property at the conclusion of all evidence and testimony at the September 4, 2018 hearing in order to determine the value, if any, of DJ Mart's "equitable title acquired pursuant to" the contract entered into between the parties. It then made the following findings:
7. After further review of its trial notes concerning the testimony presented, the exhibits introduced into evidence, and the pleadings, the court has concluded that the defendant DJ Mart, LLC has more than met its burden for rescission and that granting such relief will be the remedy that is the least disruptive to the rights of the present Lessee of the subject real property. Such person/entity is not a party to this action.
8. It is clear from the totality of the evidence that the [appellant]'s agents engaged in active fraud, both by omission and commission, with respect to material representations concerning the subject real property. It is also clear that on several occasions, from the very inception of the contract between the parties, the defendant requested rescission and the [appellant] continued to lie and weasel its way out of returning the defendant's down payment.
9. Such material and fraudulent misrepresentations and omissions include but are not limited to: (a) failing to disclose that the [appellant] had failed and refused to pay at least three years [sic] worth of real property taxes, in excess of $ 20,000.00, and that the subject real property was about to be sold for nonpayment of taxes, (b) failing to disclose the real status of the inoperability and disrepair of the gas pumps, and (c) the [appellant's] repeated lies that within two months it would repair both the gas tanks and the gas pumps at its own cost and expense.
10. It is clear from the subsequent lease of the subject real property that the [appellee] DJ Mart, LLC was paying a monthly rate that was in excess of the reasonable rental value of the subject real properly.
11. If the court had not granted the [appellee]'s request for rescission it would have ordered the subject real property sold in order to determine the value, if any, of the [appellee] DJ Mart, LLC's equitable interest in the real property.
Then, noting appellant's failure to present any additional evidence or testimony for any further relief, the circuit court dismissed appellant's complaint with prejudice, awarded a $ 96,000 judgment as the return of its original down payment price to appellee DJ Mart on its rescission counterclaim, and denied DJ Mart's request of a return of the $ 4,900 it spent on a new roof for the subject property. This timely appeal followed.
In civil bench trials, the standard of review on appeal is whether the circuit court's findings were clearly erroneous or clearly against a preponderance of the evidence. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed.
The parol-evidence rule, which is a substantive rule of law rather than a rule of evidence, prohibits introduction of extrinsic evidence, parol or otherwise, which is offered to vary the terms of a written agreement. Its premise is that the written agreement itself is the best evidence of the intention of the parties. In the absence of fraud, accident, or mistake, a written contract merges, and thereby extinguishes, all prior and contemporaneous negotiations, understandings, and verbal agreements on the same subject.
Appellant argues that the circuit court clearly erred in finding that it committed (1) fraud by omission by failing to disclose (a) unpaid real estate taxes and (b) the real status of the inoperability and disrepair of the gas pumps, and (2) misrepresentation. We necessarily address these two arguments together as misrepresentation is a method of committing fraud.
In order to establish fraud, as asserted here, there must be (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damages suffered as a result of the reliance. These elements must be established by clear, strong, and satisfactory proof.
The basic facts before us are that the parties entered into a contract for the sale of a gas station from appellant to the appellees. The contract is the only documentation before us; all other evidence is testimonial. Appellant's arguments rely mainly on the terms of the contract, while the appellees' arguments-upon which the circuit court necessarily made its ruling-relied totally on Singh's testimony.
According to Singh, at multiple points prior to signing the contract and thereafter, appellant-through its agent-promised to provide new pumps within two months of the contract date. Singh asserted that this induced him to sign the contract. Singh also asserted that appellant failed to disclose its tax liability and the "real status" of the gas pumps. Singh expressly stated that he would not have entered into the contract had he known the latter fact. The circuit court expressly found the above-referenced statements and omissions to be "material and fraudulent misrepresentations and omissions." Whether these alleged conversations occurred are matters on which the circuit court apparently found Singh to be credible; this court does not disturb credibility determinations.
We acknowledge that a fraudulent representation by one party to another must relate to a past event or present circumstance; projections of future events or conduct cannot support a fraud claim as a matter of law. However, an exception to the "future events" rule arises if the promisor, at the time of making the promise, has no intention to carry it out. The circuit court's reference to appellant's statements promising to buy new pumps as material and fraudulent in addition to appellant's ultimate denial that it ever made such statements support appellant's lack of intent to carry out the statement-a promise-that the court found it made.
Appellant's final argument is that it properly terminated the contract. It is not clear that this argument was made below. When an argument is not raised in the circuit court, it is not considered on appeal. However, to the extent that this argument can be found to have been raised below, appellant did not obtain a ruling. Failure to obtain a ruling on an issue constitutes waiver of the issue on appeal.
Affirmed.
Virden and Murphy, JJ., agree.
At the beginning of the trial, appellant stated that while there was a claim against Daljit Singh in his individual capacity, appellant was not pursuing the claim because Singh was not a party to the contract and it was not seeking damages. Despite this assertion, we note that Singh did sign the contract with no designation that he was signing on behalf of DJ Mart, LLC. Furthermore, both Singh and DJ Mart, LLC, were listed as "Buyer."
At the time, AAN was the lessee of the gas station from appellant, who was the lessor.
Singh paid $ 80,000 in addition to the $ 16,000 he had previously paid appellant.
Appellees stated that "[o]n September 3, 2017, [DJ Mart] through Singh learned the convenience store did not have access to gasoline and petroleum products in large measure because three of the four tanks were unfit for gasoline storage and would require significant repair."
Waddell v. Ferguson Home Builders, LLC , 2017 Ark. App. 66, at 5, 513 S.W.3d 271, 275 (citing Tadlock v. Moncus , 2013 Ark. App. 363, 428 S.W.3d 526 ).
Id.
Hurt-Hoover Invs., LLC v. Fulmer , 2014 Ark. App. 197, at 7, 433 S.W.3d 917, 922, (citing First Nat'l Bank of Crossett v. Griffin , 310 Ark. 164, 168, 832 S.W.2d 816, 818 (1992) ).
Id. (citing Griffin , 832 S.W.2d at 818-19 ).
Lee v. Bolan , 2010 Ark. App. 209, at 13, 374 S.W.3d 718, 726 (citing Ultracuts Ltd. v. Wal-Mart Stores, Inc. , 343 Ark. 224, 33 S.W.3d 128 (2000) ).
Morris v. Knopick , 2017 Ark. App. 225, at 6-7, 521 S.W.3d 495, 501 (citing Tyson Foods, Inc. v. Davis , 347 Ark. 566, 66 S.W.3d 568 (2002) ).
Lone v. Koch , 2015 Ark. App. 373, at 5, 467 S.W.3d 152, 156.
See Morris , 2017 Ark. App. 225, at 7, 521 S.W.3d at 501 (citing Minton v. Minton , 2010 Ark. App. 310, 374 S.W.3d 818) ("In our review of the evidence, we are mindful that we must defer to the trial court's evaluation of the credibility of the witnesses.").
Victory v. Smith , 2012 Ark. App. 168, at 2, 392 S.W.3d 892, 894 (citing Se. Distrib. Co. v. Miller Brewing Co. , 366 Ark. 560, 237 S.W.3d 63 (2006) ; S. Cnty., Inc. v. First W. Loan Co. , 315 Ark. 722, 871 S.W.2d 325 (1994) ).
Trakru v. Mathews , 2014 Ark. App. 154, at 10, 434 S.W.3d 10, 17 (citing Delta Sch. of Commerce v. Wood , 298 Ark. 195, 766 S.W.2d 424 (1989) ; Hobson v. Entergy Ark., Inc. , 2014 Ark. App. 101, 432 S.W.3d 117 ; Stine v. Sanders , 66 Ark. App. 49, 987 S.W.2d 289 (1999) ).
Miller v. Transamerica Commercial Fin. Corp. , 74 Ark. App. 237, 244, 47 S.W.3d 288, 293 (2001) (citing Luedemann v. Wade , 323 Ark. 161, 913 S.W.2d 773 (1996) ).
Patton Hosp. Mgmt., LLC v. Bella Vista Vill. Coopershares Owners Ass'n, Inc. , 2016 Ark. App. 281, at 6, 493 S.W.3d 798, 803 (citing Gatlin v. Gatlin , 306 Ark. 146, 811 S.W.2d 761 (1991) ). | [
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MIKE MURPHY, Judge
Appellants Larry Crain, Sr., and Crain Automotive Holdings, LLC, appeal from an order of the Pulaski County Circuit Court denying their motion to compel arbitration. On appeal, appellants argue that the circuit court erred by denying their motion to compel arbitration because certain operating agreements of the involved dealerships provide for arbitration. They also assert that they did not waive arbitration. We affirm.
Appellee Christopher Byrd had been employed as chief financial officer of Crain Automotive Holdings for many years until his employment ceased on October 26, 2017. On November 13, appellee and appellants entered into an "Employer/Employee Mutual Release Agreement" (Mutual Release Agreement). By the terms of the agreement, appellants agreed to purchase appellee's membership interest in the dealerships Crain Imports of Fayetteville, Crain K of Conway, and Crain Buick GMC of Springdale. Per the Mutual Release Agreement, the purchase price of appellee's interest is the value of his capital accounts in the dealerships determined as of December 31, 2017. "Capital accounts" are also addressed in the individual operating agreements of the above-named dealerships.
On February 7, 2018, appellee filed suit for fraud and breach of contract based on the Mutual Release Agreement. The complaint was sparse with details because the terms of the Mutual Release Agreement were confidential, but at the motion hearing, testimony revealed that appellee claimed that appellants fraudulently caused inventory of the dealerships to be liquidated and that they handled and accounted for a Volkswagen settlement incorrectly, adversely affecting the value of appellee's capital accounts. Appellants answered and denied the claims, filed a motion to dismiss, and counterclaimed for attorney fees and costs in defending the claims.
On June 8, appellants filed a motion to compel arbitration and for a stay of the case pending arbitration. The motion asserted that appellee's claims arise from, and are related to, the operating agreements of the above-named dealerships and that the claims are subject to the arbitration provision in the operating agreements. Appellee objected, asserting that his claims are based on the Mutual Release Agreement, which does not contain an arbitration provision.
On October 5, the circuit court conducted a motion hearing. After hearing arguments from both sides, it found that there was no valid agreement to arbitrate between the parties, and it denied the motion to compel arbitration. In reaching its decision, the court noted,
The Release Agreement does not reference or incorporate the operating agreement by way of an integration clause; the Release Agreement does not itself contain an arbitration clause; and the Agreement expressly contemplates litigation ("legal proceeding") whereby there is a designation of forum, waiver of jury trial, enforceable by injunctive relief and the prevailing party would be entitled to costs and fees.
This appeal followed.
Our jurisdiction is pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(12), which provides that a circuit court order denying arbitration is immediately appealable. We review a circuit court's order denying a motion to compel arbitration de novo on the record. Asset Acceptance, LLC v. Newby , 2014 Ark. 280, at 5, 437 S.W.3d 119, 122. We decide the issues on appeal using the record developed in the circuit court without deference to the circuit court's ruling. Madison Cos., LLC v. Williams , 2016 Ark. App. 610, at 5, 508 S.W.3d 901, 905. We are not bound by the circuit court's decision, but in the absence of a showing that the circuit court erred in its interpretation of the law, we will accept its decision as correct on appeal. Id. Further, we recognize that arbitration is strongly favored in Arkansas. Id.
On appeal, appellants contend that appellee's claims should be arbitrated based on the arbitration provision in the operating agreements. Appellants concede that the Mutual Release Agreement gives appellee a right to be paid the value of his capital accounts; but the value of those capital accounts is disputed. Appellants assert that the term "capital account" as used in the Mutual Release Agreement is vague and that the only way to explain this term is through admitting parol evidence of the operating agreements, which call for a dispute like this to be arbitrated.
When a court is asked to compel arbitration, it is limited to deciding two threshold questions: (1) Is there a valid agreement to arbitrate between the parties? and (2) If such an agreement exists, does the dispute fall within its scope? LegalZoom.com, Inc. v. McIllwain , 2013 Ark. 370, 429 S.W.3d 261. Our supreme court has held that arbitration is simply a matter of contract between parties. Courtyard Gardens Health & Rehab., LLC v. Quarles , 2013 Ark. 228, at 6, 428 S.W.3d 437, 442. Whether a dispute should be submitted to arbitration is a matter of contract construction, and we look to the language of the contract that contains the agreement to arbitrate and apply state-law principles. Id. We have further held that the same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally; thus, we will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. Id.
Here, there is an arbitration provision, but it is in the operating agreements, which are earlier, separate documents from the Mutual Release Agreement. There is no arbitration provision in the actual contract that appellee is suing on nor is there a reference to the operating agreements in the Mutual Release Agreement. Appellants drafted the Mutual Release Agreement and could have included an arbitration provision much like the one drafted in the operating agreements. Because we construe contracts against the drafter in the event of uncertainty or ambiguity, see Hickory Heights Health & Rehab, LLC v. Cook , 2018 Ark. App. 409, at 5, 557 S.W.3d 286, 290, we hold that there is not a valid agreement to arbitrate between the parties.
Moreover, appellants' argument that we must look to the operating agreements to determine the value of the capital accounts is unpersuasive because they have failed to cite any authority explaining how the arbitration provision in the operating agreements can satisfy the missing arbitration provision in the Mutual Release Agreement when the operating agreements were not incorporated into the Mutual Release Agreement. Our appellate courts will not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority. Lakeside Nursing & Rehab. Ctr., Inc. v. Rufkahr , 2019 Ark. App. 142, at 7-8, 572 S.W.3d 461.
Lastly, appellants' argument that the Mutual Release Agreement's language is consistent with arbitration is unavailing. The pertinent provisions follow:
10. Employee represents that he has not filed or permitted to be filed against the Employer any lawsuits ... except as may be necessary to enforce this Agreement or to obtain benefits described in or granted under this Agreement.
12. This Agreement shall be construed under and in accordance with the laws of the State of Arkansas. Employee and Employer agree to waive their right to a trial by jury with respect to any claim arising hereunder or related hereto. Should any party initiate any legal or quasi-legal proceeding relating to this Agreement, the prevailing party of such proceeding shall be entitled to recover from the other the costs and fees expended therein. This Agreement may be enforced by injunctive relief.
The Mutual Release Agreement contemplates litigation as evidenced by the plain language of the provisions. Accordingly, the circuit court did not err.
Because we affirm the circuit court's order finding that the claims are not subject to arbitration, we need not address appellants' argument that arbitration was not waived.
Affirmed.
Virden and Brown, JJ., agree.
Crain is the majority owner of Crain Automotive Holdings and serves as its chief executive officer. | [
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BRANDON J. HARRISON, Judge
A Miller County Circuit Court jury convicted African American defendant Shelby Jamal Davis of aggravated robbery and four counts of first-degree battery. The jury also found that Davis used a firearm when committing the batteries. Davis appeals his convictions and the resulting one-hundred-year sentence, raising three points. The first is that the circuit court erred by denying his race-based Batson challenge to the State's five peremptory strikes against five separate African American venire members. We reverse on the Batson argument, making it unnecessary for us to decide the other points.
I. The Juror-Selection Process
Jury selection began on 29 January 2018. During the first phase, the court asked the potential jurors many questions, including whether they resided in Miller County or had unpardoned felony convictions. The court excused several people for cause. It then asked the potential jurors if they had either been a victim of a crime or accused of committing one. Fifteen people answered yes. None were excused for cause.
The circuit clerk then drew the names of thirty people. The court called the names in the order the clerk had randomly selected them. It asked each juror to stand when called. Defense counsel and the prosecutor questioned the jurors individually at that time and were given the opportunity to use peremptory challenges (or strikes); each side had six. The process continued until the jury box was filled.
Twenty-four people were individually questioned before the jury was seated. Of the twenty-four, eight were African American. And of the twenty-four, twelve survived peremptory challenges. Three African Americans made it into the jury box. Five African American prospective jurors were eliminated by the prosecutor's peremptory strikes. Stated as percentages, the State used 83 percent of its strikes against African Americans, resulting in 62.5 percent of the eligible African Americans being excluded from serving as jurors.
Here are some details that put the jury-selection dispute in context. The first two (non-African American) venire members were seated without objection; the court excused a third juror on its own motion. The defense exercised its first peremptory strike against a non-African American woman named Lauren Glover. The prosecution exercised its first strike against Rachel Purifoy, a non-African American woman.
The prosecution used its second strike against Thomas Harris, an African American male, over Davis's Batson objection. Having found that Davis made a prima facie case for purposeful discrimination based on his race, the court required the prosecutor to provide a race-neutral reason for the peremptory challenge, as is required under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). (More will be said about Batson 's three-step process in due course.) The reason the prosecutor gave was that "Mr. Harris indicated that he knew or was aware of and was familiar with the defendant's grandfather, Mr. Davis. He is, also, the father of a child approximately the defendant's age." The third strike the State used was against an African American named Verlinda Cleveland. The prosecutor said that because Cleveland is "a single mother working with the school district," she would "tend to be sympathetic towards a young person based on [her] interactions with young people ... of the defendant's age." When he was tried, Davis was twenty-four years old. The circuit court excused Cleveland, presumably because she was a single mother who worked for the Texarkana School District.
Next was Martha Reynolds, a non-African American woman. The defense exercised a preemptory strike against Reynolds after she had said that her home had been burglarized and that the perpetrator was successfully prosecuted.
One of the more concerning moments arrived when the prosecutor exercised the State's fourth peremptory challenge against African American panelist Joyce Muldrow. Muldrow was the third African American in a row against whom the State had exercised a strike. When she was called as a potential juror the prosecutor immediately asked the court to excuse her. When summoned to the bench the prosecutor gave three race-neutral reasons to justify the challenge: first, Muldrow was the sole caregiver to her child and a disabled brother; second, "[s]he has been accused of a crime and convicted of a misdemeanor"; third, Muldrow "knew and was familiar with" Davis's grandfather. Defense counsel responded that Muldrow was a sole caregiver, but she also "said that she would be able to have people cover for that, certainly for these two days of this hearing." Defense counsel also argued that Muldrow had stated that she knew Davis's grandfather had a radio station but had never listened to any of the programs.
The circuit court responded:
[O]ut of the four strikes, they used [three] of them against African Americans, so they have to state a race neutral reason at this point in time. It's not, like I say, the first one, there wasn't a pattern, but obviously, there is a pattern here ... case law is that the reason sometimes doesn't have to be rational, they don't have to be anything other than something that they say that's race neutral.
The court then initially agreed with defense counsel, not the prosecutor, regarding Muldrow's ability to be seated. "I agree with you that Ms. Muldrow said she would make arrangements, and not let that be a problem[.]" And "I agree with you that her [Muldrow's] characterization of knowing Mr. Davis was minimal. ... She didn't know him personally, never listened to the program or anything." The prosecutor then added that Muldrow's sister had been murdered in Miller County "and the individual responsible for that had never been caught or prosecuted." To which the court replied, "That's been the case with a bunch of people that's on the panel, one of them being Ms. Reynolds, who had crime that you didn't strike, which was white."
The court rejected the prosecutor's stated reasons to strike Muldrow; yet it allowed the strike, stating, "So, you've made your record, and those are race neutral reasons, so this court can't stand in the way of it , but that's where you are." (Emphasis added.)
The State used its fifth peremptory strike against the next juror that the clerk called, Gwendolyn Richards, an African American woman. The prosecutor challenged Richards because she has a child around twenty-three years of age, a husband who worked in the Arkansas school system, and "contact with children." The prosecutor also told the court that Richards "made a scoffing noise and face which indicated to me that she would give them less credibility than she would anyone else." Defense counsel responded, "[T]here's probably not a soul out there that has no contact whatsoever with people who are the age of the defendant[.]"
In response to the parties' arguments, the court said:
As stated previously, the court has found that there is a pattern, and the state is required to give race neutral reasons ... those reasons can be a variety of things, some of them not even rational as the case law, but the more members that are stricken from this case, obviously the more prejudicial that it looks in this case, but making the finding the court does have to find that the reasons by the state are race neutral reasons, so I will allow the strike.
(Emphasis added.) Six more potential jurors, all non-African American, were individually questioned. The State did not attempt to exercise its sixth strike against any one of them. Among the six jurors was Gerald Bogan, whom defense counsel had previously represented, and against whom the State had dismissed all criminal charges. The prosecutor accepted African American Louvenia Lee as the fourth juror to be seated. Three more non-African Americans were then seated as jurors.
The prosecutor exercised her sixth peremptory strike against Schlandra Waller, an African American woman. The prosecutor asked Waller about current criminal charges pending against Waller's brother. Waller replied, "Well, he had a, I think it was dropped in Miller County." She agreed that her brother was in a nursing home. The stated reason the prosecutor gave for the court to excuse Waller was, "I am currently prosecuting her brother over a failure to register. He is a registered sex offender out of Arizona." The court responded, "[I]n this particular case, the state has stated their reason and the court does find that is a race neutral reason for the striking of this juror."
The next juror the clerk called was an African American woman named Melba Taylor. She was ultimately accepted as a juror, though the prosecutor moved to excuse her for cause. The court denied the request, stating that other jurors had expressed the same or similar problems, so Taylor would not be excused for the stated reasons. When the prosecutor asked the court to reconsider, it responded: "There was an objection this time because this juror was a black female, and you struck in this case five black members of the jury, and that's why. ... That's the second member of that race [African American] on the jury." The prosecutor did not object to Everlene Anderson being seated on the jury, making her the third and final African American to sit in judgment of the State's case against Davis.
II. The Law of Race-Based Peremptory Challenges
The Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States "prohibits all forms of purposeful racial discrimination in selection of jurors." Batson , 476 U.S. at 88, 106 S.Ct. 1712. Purposeful discrimination not only violates the rights of criminal defendants, it deprives prospective jurors of "a significant opportunity to participate in civic life." Powers v. Ohio , 499 U.S. 400, 409, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). "[T]he selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." Taylor v. Louisiana , 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Therefore, the "Constitution forbids striking even a single prospective juror for a discriminatory purpose." Foster v. Chatman , --- U.S. ----, 136 S. Ct. 1737, 1747, 195 L.Ed.2d 1 (2016) (internal citation omitted). And "[w]hen an uncorrected Batson violation is properly preserved for appeal by objection, the trial court's error in permitting a discriminatory strike cannot be harmless." Wayne R. LaFave et al. 6 Criminal Procedure § 22.3(d) Peremptory Challenges (4th ed.) (Nov. 2018 update) (collecting cases) (footnotes omitted).
"The rub has been the practical difficulty of ferreting out discrimination in selections discretionary by nature, and choices subject to myriad legitimate influences, whatever the race of the individuals on the panel from which jurors are selected." Miller-El v. Dretke , 545 U.S. 231, 238, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). To help ferret out discrimination, the Supreme Court of the United States set forth a three-step inquiry that courts conduct when intentional discrimination threatens to infect the juror-selection process by way of peremptory strikes. See Batson , 476 U.S. at 97, 106 S.Ct. 1712. This appeal is primarily about the third step in the Batson analysis. We now set forth the three steps but will focus on the third one.
The First Step. When challenging a peremptory strike that is allegedly racially motivated, the defendant must make a prima facie showing sufficient to infer that the prosecution exercised its strikes to exclude one or more jurors based on the defendant's race. Batson , 476 U.S. at 96, 106 S.Ct. 1712. The defendant is entitled to the presumption that peremptory challenges allow "those to discriminate who are of a mind to discriminate." Avery v. Georgia , 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). In this case, no one disputes that Davis satisfied this step multiple times during the jury-selection process.
The Second Step. "Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation" for the strike. Batson , 476 U.S. at 97, 106 S.Ct. 1712. A prosecutor's proffered race-neutral reason does not have to be "persuasive or even plausible." Purkett v. Elem , 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The plausibility or persuasiveness of the proffered race-neutral reason is, however, relevant during the third and final step. Id. Transitioning between the second and third steps can cause some confusion.
The Third Step. The most critical step in a Batson challenge is often the final one, during which the circuit court must decide whether the defendant has met his or her burden of demonstrating purposeful discrimination under the relevant circumstances. Batson , 476 U.S. at 98, 106 S.Ct. 1712 ("The trial court then will have the duty to determine if the defendant has established purposeful discrimination."); Snyder v. Louisiana , 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ("[A]ll of the circumstances that bear upon the issue of racial animosity must be consulted.").
The connection between the second and third Batson steps is this: if the prosecutor offers a facially race-neutral reason for a peremptory strike (step two), then the court moves to the third step, which requires it to credit or reject the reason. Snyder , 552 U.S. at 477, 128 S.Ct. 1203. A defendant's challenge to a strike can turn on whether the circuit court believes the prosecutor's race-neutral reason for the attempted strike. See Rice v. Collins , 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (accepting state trial court's decision to credit prosecutor's race-neutral explanation). Considerations that help a court determine whether to accept or reject a race-neutral reason are "the prosecutor's demeanor"; how reasonable or improbable the given reasons are; and whether the given explanation "has some basis in accepted trial strategy." Miller-El v. Cockrell , 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). But a circuit court does not have to simply accept the race-neutral reason given. Id.
In addition to prosecutors' demeanors, the reasonableness (or improbability) of the reasons given for a strike, and whether the stated reasons have a grounding in accepted trial strategy, the Supreme Court of the United States has provided the following points courts can use when assessing whether a defendant has overcome a race-neutral reason and thereby established some "evidence tending to prove purposeful discrimination":
• The strength of the prima facie case, meaning that the prosecutor exclusively or disproportionately excluded racial minorities. Dretke , 545 U.S. at 240, 125 S.Ct. 2317.
• The statistical numbers describing the prosecution's use of peremptory strikes are relevant, especially when "[h]appenstance is unlikely to produce this disparity." Cockrell , 537 U.S. at 342, 123 S.Ct. 1029 (noting that the "prosecutors used their peremptory strikes to exclude 91% of the eligible African American venire members").
• Side-by-side comparisons of African American panelists who were struck and "white panelist[s] allowed to serve." Dretke , 545 U.S. at 241, 125 S.Ct. 2317. See also Snyder , 552 U.S. at 483, 128 S.Ct. 1203 (finding prosecutor's explanation implausible when the reason for striking an African American juror would seem equally applicable to an accepted non-African American juror).
• A "racially disparate mode of examination" of potential jurors during voir dire. Cockrell , 537 U.S. at 332, 123 S.Ct. 1029 (noting that most African American potential panelists were first given a detailed description of an execution method in Texas and were not asked about what minimum sentence they would impose as compared to non-African American potential panelists). See also Dretke , 545 U.S. at 255, 125 S.Ct. 2317.
• A prosecutor's "mischaracterization of the record." Foster , 136 S. Ct. at 1753. See also Dretke , 545 U.S. at 244, 125 S.Ct. 2317 (a prosecutor mischaracterizing a juror's testimony when giving a facially race-neutral reason for the peremptory strike tends to show discriminatory intent).
• A history of racial discrimination by the prosecuting office. Dretke , 545 U.S. at 263, 125 S.Ct. 2317 (noting state prosecutor office's history of "systemically excluding blacks from juries" and a formal policy to exclude minorities from jury service).
More to the point for this case's purposes is the Supreme Court's statement on the plausibility of a prosecutor's stated reason(s) for a strike:
It is true that peremptories are often the subjects of instinct, and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.
Dretke , 545 U.S. at 252, 125 S.Ct. 2317 (internal citations and quotations omitted). Moreover, if the prosecutor's explanation is deemed pretextual, then it "gives rise to an inference of discriminatory intent," and excluding a juror for the stated race-neutral reason is unlikely to survive a Batson challenge. Snyder , 552 U.S. at 485, 128 S.Ct. 1203.
The burden to sufficiently establish a Batson violation, however, always remains with the defendant. Purkett , 514 U.S. at 768, 115 S.Ct. 1769. And a circuit court's ruling on a Batson challenge will not be reversed unless its findings are clearly against the preponderance of the evidence. Armstrong v. State , 366 Ark. 105, 233 S.W.3d 627 (2006). But as the Supreme Court of the United States has written, "[d]eference [to the lower court's factual findings] does not by definition preclude relief." Cockrell , 537 U.S. at 340, 123 S.Ct. 1029.
III. The Batson Violation
Davis argues the following as he seeks to establish that a Batson violation occurred:
The trial court appeared to rely on a fundamental misunderstanding of Batson , noting that the State's race-neutral reasons did not even have to be rational to overcome a Batson challenge. The trial court essentially ignored the third step in the Batson analysis-whether the defense had proven purposeful discrimination-instead permitting the strikes solely based on presentation of any race-neutral reason at all.
The circuit court, in other words, did not go deeply enough into the Batson process and decide whether to accept or reject the State's stated reasons and then determine whether Davis had carried his burden to prove purposeful discrimination. The State responds that Davis failed to counter the race-neutral reasons the prosecutor gave to the court.
The parties' legal battle has therefore joined at Batson 's third step and whether the circuit court properly applied it. A word of caution is warranted before proceeding further. We do not decide today the ultimate questions of whether Davis sufficiently established a pattern of discriminatory intent against African American venire members and whether the circuit court's decision to reject Davis's challenges were clearly against the preponderance of the evidence. Our focus is solely on whether a constitutionally mandated process was correctly followed-not whether the conclusion at the end of a correctly applied process is sufficiently supported by the record. The two things are not one and the same.
As we have mentioned, the way through a Batson challenge has caused some confusion when proceeding from the second step to the third step. See MacKintrush v. State , 334 Ark. 390, 399, 978 S.W.2d 293, 297 (1998) ("[W]e must confess to some confusion over what the term [ Batson objection] means[.]"); see also Woods v. State , 2017 Ark. 273, 527 S.W.3d 706 (addressing the transition from step two to three and attempting to clarify what analysis is required and when). This case is no different. Here, we agree with Davis that the circuit court seems to have believed that it had to accept the State's race-neutral reasons at their face values, which is contrary to Supreme Court precedent. "[O]bviously, there is a pattern here ... case law is that the reasons sometimes doesn't have to be rational, they don't have to be anything other than something that they say that's race neutral," said the circuit court. But Batson 's third step requires a circuit court to decide whether to credit the prosecution's race-neutral reasons or to deem them pretextual. "If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to much more than Swain [v. Alabama , 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) ]." Dretke , 545 U.S. at 239-40, 125 S.Ct. 2317.
Take Joyce Muldrow. When handling this strike, the court initially seemed to reject the prosecutor's facially race-neutral reasons as factual errors. The court in fact agreed with defense counsel in some respects. "I agree with you that Ms. Muldrow said she would make arrangements, and not let that be a problem[.]" And "I agree with you that her [Muldrow's] characterization of knowing Mr. Davis was minimal ... She didn't know him personally, never listened to the program or anything." It also said that "lots of people" had raised their hands about past crimes and that Muldrow's sister's murder or the prior misdemeanor conviction did not disqualify her. Yet Muldrow was still struck because the prosecutor had given a race-neutral reason, the court apparently believing that "it can't stand in the way of it," the "it" being the proffered race-neutral reason. In other words, the court thought its hands were tied because the prosecutor had given a race-neutral reason; but the prevailing Supreme Court precedents place no such binding upon a circuit court's power or judgment.
Joyce Muldrow is just one example of persisting doubt that the circuit court expressed as it had to repeatedly apply the Batson framework to five of the prosecutor's peremptory strikes. All circumstances are relevant when determining whether discrimination entered the trial process. And when considering whether an alleged Batson violation has occurred, the striking of one juror may be considered when deciding if another juror is being targeted for an improper reason. Dretke, supra . For example, that the prosecutor asked the court to excuse African American Melba Taylor for cause after the State had exhausted its six preemptory strikes is telling. And when the prosecutor moved to strike Taylor for cause, the circuit court promptly rejected the State's race-neutral reasons. But when the State moved to exclude African Americans using preemptory strikes, the court believed it had to accept the given reasons. (For example, "the court does have to find that the reasons by the state are race neutral reasons, so I will allow the strike.") (Emphasis added.)
All this is to say that we are persuaded the circuit court was concerned with the prosecution's course during jury selection. And though facially race-neutral reasons were given for five of the six peremptory strikes the State exercised against African Americans, the court held that it was bound to accept the reasons (even irrational ones) when it was not so bound. Moreover, the court flatly rejected a for-cause strike when the State tried to exclude an African American venire member after it had exhausted its allotted peremptory strikes. The tone of that rejection further informs our conclusion that the court may well have denied one or more of the State's peremptory challenges had the court believed the Federal Constitution empowered it to reject a race-neutral reason as being a pretext for intentional discrimination.
IV. Conclusion
The circuit court remained engaged with, and attuned to, the possibility of a Batson violation. It handled defense counsel's objections with the seriousness that they deserved. And it gave full voice to the State's reasons for the peremptory challenges. Ultimately, however, the circuit court mistakenly thought that it could not reject a race-neutral reason given by the prosecutor. Granting that a Batson challenge can be difficult to superintend in real time as the trial process unfolds, we nonetheless hold that the court erred when applying Batson 's third step given Supreme Court precedent, which we must follow. U.S. Const. art. VI, § 1, cl. 2 (Supremacy Clause).
The judgment against Shelby Jamal Davis is hereby reversed, and the case remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Abramson, Gladwin, Whiteaker, Vaught, and Murphy, JJ. agree.
Gruber, C.J., and Klappenbach and Hixson, JJ., dissent.
When a trial court does not expressly find that a State's peremptory strike is based on a venire member's demeanor, an appellate court cannot presume that the trial court credited the State's demeanor-based reason for the strike. See Snyder v. Louisiana , 552 U.S. 472, 479, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). Here, the circuit court did not make any express demeanor-related rulings regarding any venire member.
Dretke , 545 U.S. at 241, 125 S.Ct. 2317. | [
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ROBIN F. WYNNE, Associate Justice
Appellant Eric Johnson appeals the circuit court's dismissal of his pro se petition for a writ of habeas corpus. In 2011, Johnson pleaded guilty to attempted first-degree murder and first-degree battery and was sentenced to an aggregate term of 540 months' imprisonment. Johnson alleged in his habeas petition that his sentence was illegal because the trial court failed to pronounce sentence in open court at the conclusion of the plea hearing in violation of Arkansas Code Annotated section 16-90-106(d) (Repl. 2006). Johnson's brief-in-chief was tendered to this court, but it was not filed because the addendum lacked a file-marked copy of his notice of appeal and the habeas petition that he had filed in circuit court. Thereafter, Johnson filed pro se motions to file a supplemental addendum and substituted brief, for a copy of the record at public expense, and for rule on clerk to file the tendered brief-in-chief. Johnson subsequently obtained a copy of the record that contained a file-marked copy of his habeas petition and notice of appeal and tendered a brief with a compliant supplemental addendum, together with a motion to file the substituted brief and supplemental addendum; he also asked that his previous motions be withdrawn.
An appeal from an order that denied a petition for postconviction relief, including a petition for writ of habeas corpus, will not be permitted to go forward when it is clear from the record that the appellant could not prevail. Love v. Kelley , 2018 Ark. 206, 548 S.W.3d 145. Because Johnson failed to demonstrate that the sentence was illegal on its face or the trial court lacked jurisdiction, he cannot prevail. We therefore dismiss the appeal, which renders his motions moot.
A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Anderson v. Kelley , 2019 Ark. 6, 564 S.W.3d 516. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Unless the petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs , 2013 Ark. 416, 2013 WL 5775566. This court views an issue of a void or illegal sentence as being an issue of subject-matter jurisdiction. Donaldson v. State , 370 Ark. 3, 257 S.W.3d 74 (2007). A sentence is void or illegal when the trial court lacks authority to impose it. Id. In Arkansas, sentencing is entirely a matter of statute, and this court has consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. Philyaw , 2015 Ark. 465, 477 S.W.3d 503. When the law does not authorize the particular sentence pronounced by a trial court, that sentence is unauthorized and illegal. Id.
A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case. Johnson v. State , 2018 Ark. 42, 538 S.W.3d 819. Claims of error by the trial court that accepted a guilty plea are not within the purview of the remedy because the writ will not be issued to correct errors or irregularities that occurred in a guilty-plea proceeding. Id. Unless a habeas petitioner can demonstrate that a sentence is illegal on the face of the judgment-and-commitment order, there is no showing that the trial court lacked jurisdiction to impose it. Edwards v. Kelley , 2017 Ark. 254, 526 S.W.3d 825.
Challenges to a plea hearing for failure to follow the mandates of section 16-90-106 must be raised at the time of the hearing before it will be considered by this court on appeal. Willis v. State , 299 Ark. 356, 772 S.W.2d 584 (1989) ; Goff v. State , 341 Ark. 567, 19 S.W.3d 579 (2000). This is because an error in a plea proceeding is not a jurisdictional defect. See Noble v. Norris , 368 Ark. 69, 243 S.W.3d 260 (2006) (Failure to follow the statutory procedure in the exercise of a court's authority constitutes reversible error but does not deprive the court of jurisdiction.). A violation of section 16-90-106 does not implicate the trial court's jurisdiction or render a sentence illegal.
The face of the order of conviction demonstrates that Johnson was convicted as a habitual offender under Arkansas Code Annotated section 5-4-501(a)(1) (Repl. 2006), of a Class A felony for attempted murder, and a Class B felony for battery. Johnson was sentenced to concurrent terms of imprisonment of 540 months for attempted murder and 340 months for battery. Under the habitual-offender statute cited above, a Class A felony carries a maximum sentence of fifty years' imprisonment, and a Class B felony carries a maximum sentence of thirty years' imprisonment. See Ark. Code Ann. § 5-4-501(a)(1)(C)(2). Johnson's concurrent sentences fell within the maximum sentences allowed under the law at the time the offenses were committed. In sum, Johnson's sentences are not illegal on the face of the judgment, and there is no showing that the trial court lacked jurisdiction to impose the sentences authorized under the law. Edwards , 2017 Ark. 254, 526 S.W.3d 825.
Appeal dismissed; motions moot.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
I dissent for the reasons set forth in Stephenson v. Kelley , 2018 Ark. 143, 544 S.W.3d 44 (Hart, J., dissenting). As set forth therein, the majority's conception of habeas corpus is dated, senselessly narrow, and legally incorrect.
Moreover, the majority's suggestion that, because the sentence to which he pled guilty falls within the acceptable statutory sentencing range, Johnson can therefore never prevail on habeas grounds, is frustrating. It is true that the term of years contained in the sentence on Johnson's commitment order is within the acceptable range pursuant to Ark. Code Ann. § 5-4-501(a)(1). Ark. Code Ann. § 5-4-501(a)(1) allows for a sentence with an expanded term of years for a felony committed by an individual who has previously been convicted of between one and four felonies. Indeed, the transcript from Johnson's plea hearing indicates his acknowledgement of one prior conviction from Louisiana for illegal possession of stolen things and one prior conviction from Arkansas for second-degree murder. These prior convictions would support his expanded sentence of forty-five (with thirty concurrent) years on the present charges.
However, the present claim Johnson asserts in his habeas corpus petition has nothing to do with the application of Ark. Code Ann. § 5-4-501(a)(1) to his sentence's term of years. Instead, Johnson takes issue with the apparent application of Ark. Code Ann. § 5-4-501(d), a separate provision of the habitual-offender statute that precludes consideration of parole eligibility in certain cases. Ark. Code Ann. § 5-4-501(d) provides that one who has previously been convicted of two or more felonies involving violence and is subsequently convicted of another felony involving violence shall not be eligible for parole for the sentence corresponding to the latter conviction.
Johnson is not complaining about the length of his sentence; he is complaining about the fact that he is being denied consideration for parole. Johnson is being denied parole consideration under the guise that his commitment order provides that he was "sentenced as habitual" and therefore ineligible for parole, but his commitment order does not so provide. The order only reflects the imposition of Ark. Code Ann. § "5-4-501(a)(1)," which authorizes an extended term of years; it says nothing of Ark. Code Ann. § 5-4-501(d), which precludes parole eligibility.
The rest of the record also supports Johnson's complaint. The transcript from Johnson's plea hearing contains no discussion whatsoever of Ark. Code Ann. § 5-4-501(d) or any impact upon Johnson's parole eligibility. The only prior convictions (one violent, one not) discussed at the plea hearing pertained to the basis for the extended sentence of forty-five years pursuant to Ark. Code Ann. § 5-4-501(a)(1) ; there is no indication in this record of any "two" prior violent felonies that would be necessary to justify imposition of § 5-4-501(d). In short, every indication in the record here supports Johnson's assertion that he is supposed to be eligible for parole on the sentence he is presently serving.
This is a problem. If Johnson was intended to be sentenced without the possibility of parole, making that information part of his plea record would have been necessary because a criminal defendant is, and must be, "entitled to know the effect of his sentence." Culpepper v. State , 268 Ark. 263, 267, 595 S.W.2d 220, 222 (1980). Furthermore, "[a]ll sentences made, rendered, or pronounced by any of the courts of the state against anyone without actual or constructive notice, and all proceedings had under such sentences, shall be absolutely null and void." Ark. Code Ann. § 16-90-103.
Finally, a brief review of Johnson's charges suggests that, had he known he would be required to serve 100 percent of the forty-five-sentence he had been offered by the prosecution (instead of 50 percent, as he was told by his attorney), he may very well have elected to go to trial in hopes of a lesser conviction or sentence from the jury. This was, or should have been, Johnson's decision to make, and depriving him of that decision violates his due-process rights. Johnson's claim should be cognizable on habeas corpus grounds. I dissent. | [
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PHILLIP T. WHITEAKER, Judge
Appellant Cindy Gillespie, in her capacity as director of the Arkansas Department of Human Services ("Department"), appeals a Pulaski County Circuit Court order granting in part appellee Reed Brewer's request for documents under the Arkansas Freedom of Information Act (FOIA). On behalf of the Department, Gillespie argues that the trial court erred because the documents are not subject to disclosure under FOIA. Because the Department has already released the disputed documents, we dismiss the appeal as moot and do not address the merits of the arguments raised on appeal.
I. Factual and Procedural History
This appeal involves a request by Brewer pursuant to the Arkansas Freedom of Information Act seeking information contained in the personnel file of one of the Department's employees. Before addressing the actual request at issue in this appeal, we provide a short analysis of FOIA. FOIA sets forth a general policy for all public records to be "open to inspection" unless they are specifically exempt. Hyman v. Sadler for Ark. State Police , 2018 Ark. App. 82, 539 S.W.3d 642. Our supreme court has held that for a record to be subject to FOIA and available to the public, it must (1) be possessed by an entity covered by the Act, (2) fall within the Act's definition of a public record, and (3) not be exempt by the Act or other statutes. Nabholz Constr. Corp. v. Contractors for Pub. Prot. Ass'n , 371 Ark. 411, 266 S.W.3d 689 (2007). In this appeal, it is undisputed that the Department is an entity covered by the Act and that the documents requested by Brewer are public records within the Act's definition. The issue of controversy between the parties is whether the requested documents are subject to, or exempt from, disclosure. Under FOIA, the legislature has determined that "employee evaluation or job performance records" should be treated differently than other personnel records based on the public's interest in maintaining an effective public-employee-evaluation system and in the privacy interests of its employees. Hyman, supra. Thus, FOIA contains a general exemption provision for the disclosure of personnel records, Ark. Code Ann. § 25-19-105(b)(12) (Supp. 2017), and a specific exemption provision for the disclosure of employee-evaluation or job-performance records, Ark. Code Ann. § 25-19-105(c)(1).
On July 2, 2018, Brewer filed a FOIA request with the Department requesting documents from the personnel file of a former employee, Leslie Rutledge, along with any correspondence between Ms. Rutledge and the Department since she left its employ. More specifically, the request sought "evaluations, records related to disciplinary history, suspension, complaints, termination and/or resignation and do-not-rehire requests, human resources memorandums or notes, and related emails" and any communication sent to or received by any employee of the Department, whether internal or external, regarding her personnel file or the aforementioned documents. On July 5, 2018, the Department requested an extension of five business days because the material requested contained personnel information, some of which required redaction or permission for disclosure. Brewer did not agree to the extension, and the Department did not provide the documents as requested. Despite not having been provided the requested documents, Brewer took no immediate action. On July 25, 2018, the Department again requested another extension until August 3, 2018, so that it could complete its search for the requested emails. In response, Brewer agreed to an extension for personnel-related information until the close of business on July 27, 2018. The Department complied with the extension date.
On July 27, 2018, the Department provided Brewer with fifty-one pages of information from Ms. Rutledge's personnel file. The Department redacted and omitted information that it asserted was not subject to disclosure under FOIA. The documents redacted and omitted by the Department consisted of eight pages. These eight pages consisted primarily of a counseling statement dated May 1, 2007; a career-ladder-incentive program (CLIP) eligibility and rating form with instructions dated March 30, 2007, and a form generated by the Department in January 2009 in response to a payment of an unemployment-benefits claim filed by Ms. Rutledge.
On August 9, 2018, Brewer filed a complaint in the Pulaski County Circuit Court, alleging that the Department had violated FOIA by failing to release certain personnel and employee-evaluation records related to Ms. Rutledge. His complaint raised three basic contentions: (1) Ms. Rutledge is currently the state's chief law enforcement officer and is entrusted with millions of taxpayer dollars; (2) she was formerly employed by the Department and was terminated by it; and (3) the Department's termination of Ms. Rutledge likely meant there was conduct that could have undermined the public trust, compromised public safety, or was possibly even illegal. Thus, Brewer took the position that there was a compelling public interest in releasing Ms. Rutledge's job-performance records since those records would shed light on how a high-level law enforcement official handled internal government workings and either did or did not comply with the public funds and responsibilities entrusted to her. He also claimed that because Ms. Rutledge was a public figure who had willingly put her job performance in the public spotlight, the release of these records would not be a clearly unwarranted invasion of personal privacy. The Department answered the complaint, asserting that Ms. Rutledge had not been terminated but had voluntarily resigned in 2007; that certain emails requested by Brewer were not available and had been automatically deleted from its computer system after five years of retention; and that the documents were not subject to FOIA.
The circuit court scheduled a hearing on the controversy between the parties. At the hearing, the court conducted an in camera review of the eight pages in dispute. It also heard testimony from Mark White, the deputy director of the Division of Aging, Adult, and Behavioral Health Services-the only witness to testify. Concerning the seven pages of documents at issue, White testified that the documents were Ms. Rutledge's personnel records that would be held to the invasion-of-privacy standard under FOIA. More specifically, he testified that in 2014, the Department had received a similar request for Ms. Rutledge's records while he was chief counsel for the Department. At that time, he reviewed the records to determine whether they were employee-evaluation records. He determined that the records were employee-evaluation records that could be released only if Ms. Rutledge had been terminated or suspended. He concluded that Ms. Rutledge had not been terminated or suspended but had voluntarily resigned. White reached this conclusion based on a letter of resignation from Ms. Rutledge and a request-for-personnel-action form indicating that the termination of employment was voluntary. He acknowledged that the request-for-personnel-action form for Ms. Rutledge contained an initial designation of "01," which signified a "voluntary" end of employment and that was later replaced with the notation "Termination, 21, see attached email." He further admitted that "Code 21" means "gross misconduct," that this designation signified she was not eligible for rehire, and that as a result of this designation the Department communicated to the Employment Security Department that Ms. Rutledge had been terminated for gross misconduct. Despite this acknowledgment, he insisted that "Code 21" had been assigned improperly after the fact; that he saw no indication of any disciplinary process that had been initiated or was in progress at the time of her resignation; and that he saw no evidence that this was a resignation in lieu of termination.
At the conclusion of the hearing, the trial court ruled from the bench. In its ruling, the court considered two separate subdivisions of FOIA, Ark. Code Ann. § 25-19-105(b)(12) and (c)(1). The court found that the documents were clearly disclosable under subsection (b)(12) of the statute and that there was enough of an issue as to whether Ms. Rutledge was terminated or resigned to require production of the documents. The court specifically stated that the ruling would not be effective until a written order was entered. Three days later, the final written order was filed. In the order, the court made the following conclusions of law:
13. The court is extremely concerned by the actions taken, or those failed to be taken, by the Department of Human Services relating to Ms. Rutledge's official personnel file.
....
Testimony was presented that DHS had received a similar FOIA request in 2014 and that DHS knew about the subject eight pages. From the record presented before the court, DHS did absolutely nothing, either in 2014 or at any point in time subsequent to 2014, to make an official correction, if an official correction was in fact warranted, to Ms. Rutledge's personnel record to show that she resigned as opposed to being terminated for "gross misconduct." At the hearing, DHS orally took the position, through both argument and testimony, that its written records in Ms. Rutledge's personnel file were false, and that Ms. Rutledge was not terminated for gross misconduct.
14. This court has no opinion and makes no finding or conclusion as to whether Ms. Rutledge resigned or was terminated in 2007.
15. This matter, however, is an action pursuant to the FOIA. The request was for the disclosure of official records. The official records indicate Ms. Rutledge was terminated for gross misconduct.
....
22. The refusal to provide the seven pages submitted for in camera review in the white envelope labeled "Performance Related" was in violation of the Arkansas FOIA. Such documents are open to inspection under the FOIA.
....
24. The eight pages ordered released herein are "personnel records."
25. Disclosure of the eight pages ordered released further the public interests established by the Arkansas Supreme Court in Stilley and Young .
26. Disclosure of the subject eight pages does not constitute "a clearly unwarranted invasion of personal privacy."
27. The subject eight pages are open to public inspection pursuant to both A.C.A. § 25-19-205(b)(12) [sic] and A.C.A. § 25-19-105(c)(1).
28. It has been more than a month and a half since the FOIA request was submitted to the defendant. The Arkansas General Assembly has established an expedited procedure for the hearing and resolution of FOIA disputes. Accordingly, the defendant is ordered to email the subject documents to counsel for the plaintiff by 5:00 p.m. today.
Rather than requesting a stay of the trial court's order pending appeal, the Department provided the disputed documents to Brewer by the court-ordered deadline. The notice of appeal was timely filed the next day.
II. Analysis
On appeal, the Department argues that the trial court erred when it found that the Department had improperly withheld these seven pages from its FOIA response. We need not address the merits of the Department's argument, however, because we find the issues before us to be moot.
Generally, an issue is considered moot if any judgment or opinion issued by the court would have no practical effect upon a then existing legal controversy. Poland v. Poland , 2017 Ark. App. 178, 518 S.W.3d 98. A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal. Id. We do not render advisory opinions, and an opinion rendered on an issue that is moot would be advisory. Id.
Here, the Department has already released the documents at issue to Brewer, and they cannot be unreleased even if we were to determine there was error. Accordingly, we hold that there is no live controversy for this court to resolve, and the case is moot. The Department, however, argues that mootness alone does not foreclose our consideration of issues on appeal because exceptions to the mootness doctrine apply. We disagree.
We have recognized two exceptions to the mootness doctrine: matters capable of repetition yet evading review and matters of substantial public interest that are likely to be litigated in the future. See Protect Fayetteville v. City of Fayetteville , 2019 Ark. 28, at 3, 566 S.W.3d 105, 108. We will now consider whether either of these exceptions apply.
The first exception, an issue capable of repetition yet evading review, arises when the justiciable controversy will necessarily expire or terminate before adjudication. See Wright v. Keffer , 319 Ark. 201, 203, 890 S.W.2d 271, 272 (1995). This exception has two prongs: (a) the issues are capable of repetition and (b) they evade review. Wilson v. Walther , 2017 Ark. 270, at 13-14, 527 S.W.3d 709, 717 (Womack, J., dissenting). The issues raised here, while capable of repetition, are not doomed to evade review if not addressed herein for a couple of reasons. First, the Department could have requested a stay of the trial court's order while the issue was appealed. The Department did not do so. Second, it is not impossible for the issues raised herein to reach our court as a live controversy, and the fact that it did not do so here is no reason to apply an exception to mootness. In fact, we decided the same or similar issues as those raised herein in Davis v. Van Buren School District , 2019 Ark. App. 157, 572 S.W.3d. 466.
The second exception, matters of substantial public interest that are likely to be litigated in the future, applies when considerations of substantial public interest or the prevention of future litigation are present. See Duhon v. Gravett , 302 Ark. 358, 360, 790 S.W.2d 155, 156 (1990). This exception to the mootness doctrine likewise has two prongs: (a) that there be a substantial public interest in the issues being considered and (b) that addressing such issues, despite their being otherwise moot, would prevent future litigation. See Wilson , supra (Womack, J., dissenting). Here, while we acknowledge that there may be a substantial public interest in the release of potentially adverse employee evaluations of a constitutional officer, addressing the issues raised here at this time would not prevent further litigation. The issues presented here are fact specific to Ms. Rutledge and her tenure with the Department; the documents in question have already been released; and the issues raised have already been addressed by us in Davis, supra. Thus, our exercise of the public-interest exception to mootness would not be prudent based on the facts and circumstances presented here.
The exceptions to the mootness doctrine are not automatic. We retain the choice "as to whether we may elect to settle an issue" that is moot. Duhon , 302 Ark. at 360, 790 S.W.2d at 156. And we do not improvidently utilize either exception. See Protect Fayetteville , 2019 Ark. 28, at 3, 566 S.W.3d at 108 (collecting cases). For the reasons set forth above, we dismiss this appeal as moot.
Appeal dismissed.
Klappenbach and Vaught, JJ., agree.
Ms. Rutledge is currently the attorney general of the State of Arkansas.
He further agreed to an extension on non-personnel-file related emails until August 3, 2018.
Counseling statements are used to document violations of the employee-conduct standard in those situations in which the employee is not actually being disciplined.
A CLIP documents an employee's competency and performance in certain designated categories rating the employee's performance on a scale of 1 to 5, with a 5 meaning "always meets, and frequently exceeds performance expectations" and a 1 meaning "frequently fails to meet performance expectations."
While the disputed documents consisted of eight pages, on appeal, the Department challenges the court's ruling as to only seven of the pages.
The Department made this communication on workforce services forms made in connection with Ms. Rutledge's unemployment claims. The court ruled that the Department's failure to provide this one-page document was in violation of the Arkansas FOIA. The Department does not challenge the trial court's ruling with respect to this one-page document.
Stilley v. McBride , 332 Ark. 306, 965 S.W.2d 125 (1998).
Young v. Rice , 308 Ark. 593, 826 S.W.2d 252 (1992). | [
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RAYMOND R. ABRAMSON, Judge
This case involves a contract dispute that ultimately led to a March 8, 2018 bench trial in the Washington County Circuit Court. The circuit court found in favor of appellee, General Construction Solutions, Inc. (GCS), on its breach-of-contract claim and entered judgment against appellant, JMD Construction Services, LLC (JMD). The circuit court specifically found that the term "sealer" as used in the parties' contract was ambiguous and, resorting to parol evidence to discern the parties' intent, found that credible evidence established that the parties did not intend for GCS to provide any work associated with curing the concrete. Alternatively, the court ruled that even if the contract was not ambiguous, it was subject to reformation based on mutual mistake. The circuit court also dismissed JMD's counterclaim with prejudice. On appeal, JMD argues that the circuit court erred in finding that labor for initial curing was excluded from the scope of work; that the circuit court erred in reforming the subcontract to remove all curing labor from GCS's scope of work; and that the circuit court's order awarding attorney's fees and costs should be reversed. For the following reasons, we affirm.
On May 23, 2016, JMD was hired as the general contractor to build a FedEx Ground facility in Lowell, Arkansas. On September 26, 2016, JMD and GCS entered into a written agreement for GCS, as the subcontractor, to provide the labor for the concrete work to construct the building foundation and floor slab. The scope of work, attached as Exhibit "A" to the subcontract, required GCS to "Provide all Labor necessary to perform a turnkey building foundation and floor slab package as outlined in the Subcontract Documents." Division 3 of the FedEx Ground standard specifications ("specifications"), which were made part of the subcontract, provided a detailed description of the requirements for all concrete work, including, inter alia , both initial curing and final curing, which were defined and distinct processes. The following were listed as "exclusions" from GCS's scope of work: "Bonds, Materials Testing, Permanent Materials, Haul off of Spoils, Security Building, Sealer, Epoxy Crack Fill, Light Plants, Weather Protection, Modular Forms, Excavation & Grading Equipment & Operators."
At the crux of this case is one word: "sealer." GCS contends the term "sealer" includes "curing"; therefore, it was not obligated under the parties' contract to perform any work associated with curing concrete. JMD contends the term "sealer" does not include curing; therefore, GCS was obligated under the parties' contract to perform labor associated with curing the concrete. Over the course of the contract, JMD held back 10 percent retainage pursuant to the terms of the contract, which was to be paid thirty days following completion of the scope of the work, but at the conclusion of the work, JMD failed and refused to pay the retainage, claiming GCS did not perform the curing work required by the contract.
On August 9, 2017, GCS filed suit against JMD for breach of contract. JMD filed an answer and a counterclaim alleging that GCS owed JMD $ 73,486.20 for the cost JMD incurred for labor to perform the initial curing of the concrete slab. GCS subsequently filed a second amended complaint wherein it sought reformation of the contract and declaratory judgment in addition to the breach-of-contract claims asserted in its original and first amended complaints. JMD timely answered both amended complaints.
Following a bench trial, the circuit court found that the term "sealer" as used in the parties' contract was ambiguous, thereby opening the door to parol evidence about the contract negotiations, the correspondence after the contract was entered, and the parties' conduct and course of dealing. After resorting to parol evidence, the circuit court concluded that the exclusion of "sealer" from GCS's scope of work was intended to exclude all labor to cure the concrete, including both initial curing and final curing. The circuit court also reformed the parties' contract to exclude all labor necessary to cure the concrete on the basis of GCS's claim of mutual mistake and dismissed JMD's counterclaim. Judgment was entered in favor of GCS on March 15, 2018, for the principal amount of $ 73,978.73, plus $ 175.63 in recoverable costs and attorney's fees in the amount of $ 9,975.00, together with pre- and postjudgment interest. On April 11, 2018, JMD timely filed its notice of appeal, and this appeal is now properly before our court.
JMD's first appellate argument is that the circuit court erred in finding that labor for initial curing was excluded from GCS's contractual scope of work. JMD and GCS agree that "sealer" is excluded from the contract. JMD further admits that "sealer" is a part of the curing process. The circuit court found that Wes Taylor, owner of GCS, credibly testified that "sealer" and "curing" are the same thing. JMD argues that curing is included in the contract because it is not specifically excluded. But JMD admits that "sealer" as part of the curing process is excluded. No independent expert witness testified at trial regarding the term "sealer" and what exactly it means.
The standard of review of a circuit court's findings of fact after a bench trial is whether those findings are clearly erroneous. First Nat'l Bank v. Garner , 86 Ark. App. 213, 167 S.W.3d 664 (2004). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.
We have long held that it is the duty of courts to enforce contracts as written and in accordance with the ordinary meaning of the language used and the overall intent and purpose of the parties. Dugal Logging, Inc. v. Ark. Pulpwood Co. , 66 Ark. App. 22, 988 S.W.2d 25 (1999). Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Ison v. S. Farm Bureau Cas. Co. , 93 Ark. App. 502, 221 S.W.3d 373 (2006). However, the mere fact that a term is not defined does not automatically render a contract ambiguous. Zulpo v. Farm Bureau Mut. Ins. Co. of Ark. , 98 Ark. App. 320, 255 S.W.3d 494 (2007).
The initial determination of the existence of ambiguity in a contract rests with the court, and if ambiguity exists, parol evidence is admissible and the meaning of the term used becomes a question for the fact-finder who may consider oral testimony relating to the circumstances surrounding the execution of the contract as well as conversations had with regard to it. Blount v. McCurdy , 267 Ark. 989, 593 S.W.2d 468 (Ark. Ct. App. 1980). Here, there is obviously much dispute as to the term "sealer" and there is uncertainty as to its meaning; therefore, we hold that the circuit court was correct in finding the contract to be ambiguous and allowing parol evidence to be admitted.
GCS argues that the circuit court properly concluded that "curing" be excluded from the contract even without resorting to parol evidence, citing First National Bank of Crossett v. Griffin , 310 Ark. 164, 832 S.W.2d 816 (1992).
[T]he parol evidence rule does not prohibit the introduction of extrinsic evidence where it would aid the court in interpreting the meaning of particular language of a contract, such as when the contract contains terms of art or words which have acquired their meaning through a course of dealing or custom or usage. Les-Bil, Inc. v. General Waterworks Corp. , 256 Ark. 905, 511 S.W.2d 166 (1974). Nor does the parol evidence rule prohibit the court's acquainting itself with the circumstances surrounding the making of the contract.
Stokes v. Roberts , 289 Ark. 319, 711 S.W.2d 757 (1986) ; Schnitt v. McKellar , 244 Ark. 377, 427 S.W.2d 202 (1968).
First Nat'l Bank of Crossett , 310 Ark. at 168-69, 832 S.W.2d at 818-19 (1992).
GCS contends that here it was perfectly proper for the circuit court to consider extrinsic evidence regarding terms of art like "curing" and "sealing" and their meanings based on course of dealing, custom, or usage. We agree. Taylor's credible testimony that "curing" and "sealing" are synonymous terms in his business was proper evidence for the court to consider.
Different trades, in addition to coining words of their own, also appropriate common words and assign to them new meanings. In some types of cases, and under some circumstances, one cannot understand accurately the language of such trades without knowing the particular meanings attached to the words which they use. It is often said that a court in construing the language of the parties must put itself into the shoes of those making the contract. That alone would not suffice in some cases. The courts must also understand and adopt their vernaculars. Hurst v. Lake and Company , 141 Or. 306, 16 P.2d 627, 89 A.L.R. 1222. If "usage" was not admissible evidence, then no dictionary would be admissible to aid a court or a jury. 3 Corbin, Contracts, s 555 (1960 and Supp. 1971).
Gilstrap v. Jackson , 269 Ark. 876, 878-79, 601 S.W.2d 270, 271 (Ark. Ct. App. 1980).
Likewise, the circumstances of the contract are valid considerations. Stokes v. Roberts , 289 Ark. 319, 711 S.W.2d 757 (1986). The parol-evidence rule does not prohibit the court's acquainting itself with the circumstances surrounding the making of the contract. Id. Here, those circumstances include the three prior bids that reflected a line item for curing; the fact that the "curing" line item was struck in the third bid; and specifically curing was not included in the fourth bid, which was the bid that was ultimately accepted.
We hold that the circuit court properly considered parol evidence and extrinsic evidence in this case. The circuit court found, based on the testimony, that after the first concrete pour in December 2016, JMD performed the curing with its own labor. Eleven more concrete pours were performed between December 2016 and February 2017. In that time, JMD never made any mention or notification by email, letter, or a phone call--"no statements whatsoever made by any agents for the defendant"--claiming that GCS was responsible for doing the curing work.
The circuit court specifically found Wes Taylor, owner of GCS, to be credible. Taylor testified that everyone understood JMD was performing the curing. Taylor assisted JMD in picking out the burlap for the curing, but he was never asked to perform the curing work. Taylor also testified that "sealing" and "curing" are synonymous in his business. According to Taylor's testimony, sealer is a form of curing--specifically, a curing compound. On the stand, Taylor indicated that turnkey building foundation includes curing unless curing is excluded. Taylor further elaborated that because sealer was excluded in the contract and because, based on his experience, sealer and curing were coterminous, then all curing was excluded from GCS's scope of work.
The testimony and documentary evidence also show GCS submitted at least two prior bids, both of which were rejected by JMD, that did include curing. On the third bid, the line item for "curing" was specifically excluded. The fourth bid, which was accepted, did not contain any line item charge for "curing." After the first concrete pour, JMD--and not GCS--did the curing. Moreover, Ken Frey, JMD's superintendent, wrote in an email to Taylor, "I guess you guys don't have water cure or building temp shelter or covering subgrade so guess I will do it?"
On appeal, JMD urges that there is a distinction between the terms "sealer" and "curing." But that is a disputed question of fact for the circuit court. The evidence presented indicated that "sealer" and "curing" are interchangeable terms of art in the business. The circuit court specifically found Taylor's testimony credible. The circuit court, on the other hand, found Jacy Daugherty, owner of JMD, not credible. Specifically, the court found Daugherty not credible because of the undisputed course of dealing between the parties and his own communications and emails. The circuit court found that JMD's late-raised issue about "curing" was a ruse to avoid payment that was due and that he had strung along GCS by promising payments for months. In rebuttal, JMD explained at oral argument that the issue was not raised during the performance of the contract because the project was running behind schedule and such an argument would have caused costly delays. On appeal, we will not act as a super fact-finder and reweigh the circuit court's findings on disputed questions of fact. Buskirk v. Buskirk , 2018 Ark. App. 417, 559 S.W.3d 285.
Upon our review, we hold that the circuit court's findings were not clearly erroneous. The circuit court had a thorough and well-reasoned analysis in its decision, and we cannot say with firm and definite conviction that a mistake has been made. See Hudson v. Hilo , 88 Ark. App. 317, 198 S.W.3d 569 (2004). As such, we affirm the circuit court's decision that the contract was ambiguous, and hold that it properly considered permissible parol evidence and found that GCS was not responsible for the curing in this case.
In its alternative ruling, the circuit court found the contract was subject to reformation based on mutual mistake. Because we hold that there was no error in the circuit court's finding that the contract was ambiguous and that curing was not part of GCS's duties, we need not address JMD's second point regarding the court's reformation of the contract. JMD's final appellate point is that the circuit court's order awarding attorney's fees and costs should be reversed. On this point, JMD merely seeks reversal of the attorney's-fee award in the event our court reverses on either of the two appellate points. The basis for the argument is solely that if the judgment is reversed, the attorney's-fee award should also be reversed. JMD does not challenge the amount of the fee award, the time spent, or counsel's rate. Having affirmed the circuit court's judgment, we also affirm the award of attorney's fees.
Affirmed.
Gruber, C.J., and Harrison, J., agree. | [
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LARRY D. VAUGHT, Judge
David Mondy appeals his conviction by a Johnson County Circuit Court of two counts of second-degree sexual assault. We affirm.
On April 19, 2017, a Clarksville kindergarten class was learning about "good touches and bad touches" when six-year-old Z.P. yelled out "my daddy tickles my private parts." Counselor Laura Hyden testified at Mondy's trial that she then spoke to Z.P. outside of class and, as a result of that conversation, called the child-abuse hotline to report possible abuse.
Z.P. testified that Mondy is her mother's boyfriend and that although he is not her biological father, she calls him "daddy." She testified that Mondy touched her "private parts" with his hand and his mouth. She demonstrated what she meant by "private parts" and explained that the touching occurred at her house and at an apartment where they had previously lived. Z.P. also testified that she had seen Mondy's private parts, had seen him touch his penis (she demonstrated this gesture by moving her hand up and down with a closed fist), and had seen "water" or "soap" come out of his penis.
Prior to trial, the State requested and was granted permission to introduce evidence that Mondy is a registered sex offender as a result of a conviction that occurred seventeen years before trial. However, on the day of Mondy's trial, his half-sister M.B., who had been the minor victim in the previous case, told the prosecutor that she did not remember the events that led to Mondy's conviction. She also stated that she and Mondy had reconciled and that she did not want to testify against him. The State nevertheless called her as a witness, and the court overruled Mondy's objection that it was improper for the State to call her knowing that she would deny knowledge of the previous incident. M.B. testified that she was not allowed to have any contact with Mondy for several years but stated that she did not remember making allegations that Mondy had engaged in sexual contact with her as a child.
Mondy testified that he had not engaged in any sexual acts with Z.P. but worried that she had inadvertently seen explicit photos that Mondy and Z.P.'s mother exchanged on their phones. He admitted that he is a registered sex offender as a result of allegations of sexual impropriety that M.B. made against him seventeen years ago. He described the nature of those allegations and denied that they were true. He claimed that his 2001 conviction for a sex offense against M.B. was the result of "a bad custody battle" with M.B.'s mother. He also claimed that Z.P.'s mother had coached her to make false allegations against him after he had ended their relationship.
Mondy also presented the testimony of his ex-wife, Martha Mondy, who stated that she did not have concerns about him being around their eleven-year-old daughter. He also called several other witnesses who testified that they know him well and had no concerns that he could do the acts Z.P. described.
The jury acquitted Mondy of rape but found him guilty of two counts of second-degree sexual assault. Mondy requested alternative-sentencing instructions, which the court rejected. The jury recommended that he be sentenced to twenty years' imprisonment on each count, to be served consecutively, and the court entered that sentence. Mondy filed a timely notice of appeal.
A person commits sexual assault in the second degree if that person, being eighteen years of age or older, engages in sexual contact with another person who is less than fourteen years of age. Ark. Code Ann. § 5-14-125(a)(3)(A) (Repl. 2017). A victim's testimony may constitute substantial evidence to sustain a conviction of rape or sexual assault, even when the victim is a child. Gatlin v. State , 320 Ark. 120, 895 S.W.2d 526 (1995). The victim's testimony need not be corroborated, nor is scientific evidence required. Id.
The admission or rejection of testimony is a matter within the trial court's sound discretion and will not be reversed on appeal absent a manifest abuse of that discretion and a showing of prejudice to the defendant. Hamm v. State , 365 Ark. 647, 652, 232 S.W.3d 463, 468 (2006). An abuse of discretion is a high threshold that does not simply require error in the trial court's decision but requires that the trial court acted improvidently, thoughtlessly, or without due consideration. Harris v. State , 2018 Ark. App. 219, at 8, 547 S.W.3d 709, 714.
Mondy first argues that Hyden was impermissibly allowed to describe inadmissible hearsay when she testified about Z.P.'s outburst at school and her subsequent conversation with Z.P. that led Hyden to call the child-abuse hotline. Mondy objected below to the testimony, and the State argued that it was not being offered for the truth of the matter asserted but was being introduced to provide the background and basis for Hyden's subsequent action of reporting Mondy for suspected child abuse. The court allowed the introduction of the testimony with a limiting instruction that it should not be taken for the truth of the matter asserted but was instead being offered as the basis for Hyden's actions.
We see no reversible error in that decision. Hearsay is a statement, other than one made by the declarant while testifying, offered to prove the truth of the matter asserted. Ark. R. Evid. 801 (2018). Hearsay is generally inadmissible, but such testimony is not prohibited by the hearsay rule if it is not offered for the truth of the matter asserted. Bragg v. State , 328 Ark. 613, 623, 946 S.W.2d 654, 660 (1997). The Arkansas Supreme Court has held that a statement is not hearsay when it is offered to show the basis for a witness's actions. Dednam v. State , 360 Ark. 240, 246, 200 S.W.3d 875, 879 (2005).
Here, Hyden testified about her basis for reporting Mondy to the child-abuse hotline, and the court instructed the jury to consider the testimony only for such purposes. Mondy argues that no context for Hyden's report was necessary in order for the jury to understand the case. His argument fails for two reasons. First, Mondy provides no authority for his claim that the above-cited evidentiary rules are available only when the proponent of the evidence can establish a specific need for explaining the basis for a witness's actions. The Arkansas Rules of Evidence and case law allow the introduction of hearsay if not offered for the truth of the matter asserted, and Mondy has not provided compelling argument or authority in favor of adopting an additional necessity requirement. Second, we note that the State argues on appeal that this testimony was especially relevant because it undercuts Mondy's defense that the allegations were orchestrated by Z.P.'s mother in retaliation for Mondy's decision to end their relationship. While we must be careful not to consider this evidence beyond the scope for which it was admitted, we agree that understanding the context and basis for Hyden's actions in reporting her suspicions of abuse was important given Mondy's argument that Z.P.'s mother fabricated the allegations.
Mondy next challenges the court's decision to admit evidence related to his prior conviction and status as a registered sex offender pursuant to Arkansas Rule of Evidence 404(b), which provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evidence is not admissible under Rule 404(b) simply to show a prior bad act. Vance v. State , 2011 Ark. 243, at 20, 383 S.W.3d 325, 339. Rather, the test for admissibility under Rule 404(b) is whether the evidence is independently relevant, which means it must have a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Id. Any circumstance that links a defendant to the crime or raises a possible motive for the crime is independently relevant and admissible under Rule 404(b). Id.
While evidence of other crimes or bad acts may be admissible under Rule 404(b), to be probative under Rule 403, the prior crime or bad act must be sufficiently similar to the crime charged. Vance , 2011 Ark. 243, at 20, 383 S.W.3d at 339. When offered as Rule 404(b) evidence, the prior bad act need not have the degree of similarity that is required for evidence of modus operandi. Fells v. State , 362 Ark. 77, 207 S.W.3d 498 (2005). The previous acts do not have to be identical, just similar. Vance , 2011 Ark. 243, at 20, 383 S.W.3d at 339. Moreover, our supreme court has stated that we are to give considerable leeway to the trial court in determining whether the circumstances of the prior crime and the crime at hand were sufficiently similar to warrant admission under Rule 404(b). Creed v. State , 372 Ark. 221, 227, 273 S.W.3d 494, 499 (2008).
Additionally, our supreme court has explained that even if evidence is relevant under Rule 404(b), Arkansas Rule of Evidence 403 provides that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Vance , 2011 Ark. 243, at 20, 383 S.W.3d at 339. However, our supreme court has further noted that evidence offered by the State in a criminal trial is likely to be prejudicial to the defendant to some degree, otherwise it would not be offered. Id. ; Rounsaville v. State , 2009 Ark. 479, 346 S.W.3d 289. Nevertheless, the evidence should not be excluded under Rule 403 unless the defendant can show that the evidence lacks probative value in view of the risk of unfair prejudice. Id. This court reviews a trial court's ruling under Rule 403 for an abuse of discretion. Id.
Here, Mondy argues that the prior act was too remote in time to be relevant, having occurred more than seventeen years before trial. He relies heavily on Efird v. State , 102 Ark. App. 110, 113, 282 S.W.3d 282, 284 (2008), in which we reversed Efird's convictions for rape and sexual indecency with a child based on the improper admission of evidence related to seventeen-year-old sexual-abuse allegations. However, in Efird , we found that the prior allegations were both dissimilar in character and temporally removed from the crimes charged. Here, while the prior crime was temporally removed from the current charges, the court noted that they were very similar in character. In both instances, Mondy was accused of sexually abusing girls who were approximately six years old by committing very similar sexual acts. Both times, he had a close family or domestic relationship with the girls and committed the acts at home. We see no abuse of discretion as to the court's finding that the prior conviction was admissible under Rule 404(b).
Mondy also challenges the court's decision to allow the State to call M.B. to testify after M.B. told the prosecutor she did not remember the events leading to Mondy's previous conviction. Mondy argued at trial that it would be improper to allow the State to call a witness for the sole purpose of impeaching the witness with otherwise inadmissible evidence. He raises the same challenge on appeal, relying on a series of cases from federal district and appellate courts to support his claim that the State may not call a witness for the sole purpose of impeachment. United States v. Johnson , 802 F.2d 1459, 1466 (D.C. Cir. 1986) ; United States v. Libby , 475 F. Supp. 2d 73, 83 (D.D.C. 2007) ; United States v. Webster , 734 F.2d 1191, 1192 (7th Cir. 1984). We need not address the propriety of calling a witness for the purpose of impeachment because Mondy cannot demonstrate prejudice from M.B.'s testimony, and any error that occurred was harmless.
We have held that even when a circuit court errs in admitting evidence, we may declare the error harmless and affirm when the evidence of guilt is overwhelming and the error is slight. Kelley v. State , 2009 Ark. 389, at 20, 327 S.W.3d 373, 383 ; Buford v. State , 368 Ark. 87, 91, 243 S.W.3d 300, 303 (2006). To determine if the error is slight, we look to see if the defendant was prejudiced. Kelley, 2009 Ark. 389, at 20, 327 S.W.3d at 383. This court has consistently held that the uncorroborated testimony of a child-rape victim is sufficient evidence to sustain a conviction. White v. State , 367 Ark. 595, 600, 242 S.W.3d 240, 245 (2006). Here, Mondy later testified and "opened the door" to questions about his prior conviction; he then testified at length about that issue. The State's questions to M.B., which she denied and which the State then did not substantiate with the introduction of extrinsic evidence of her prior allegations, were significantly less prejudicial than Mondy's own testimony about those prior events. Finally, Z.P. testified at length about Mondy's abuse. As in Kelley and White , we conclude that the evidence of Mondy's guilt was overwhelming, and any prejudice from the court's alleged evidentiary error was slight. We affirm on this point.
Mondy's final challenge on appeal is to the court's denial of his request for an alternative-sentencing instruction to the jury. Giving alternative-sentencing instructions is discretionary, but courts must exercise that discretion on a case-by-case basis. Ark. Code Ann. § 16-97-101(4) (Repl. 2016); Miller v. State , 97 Ark. App. 285, 287, 248 S.W.3d 487, 489 (2007). Mondy argues that the court improperly applied a blanket rule of refusing to give alternative-sentencing instructions in multicount cases. We disagree. After reviewing the record, it is clear that while the court considered the fact that the case contained multiple counts, it did not apply a blanket rule but instead treated the issue as one factor in evaluating the propriety of giving such instructions in the present case. The court also considered the fact that Mondy had now been convicted of three counts of sexual assault against very young children.
Additionally, Mondy cannot demonstrate prejudice because the jury imposed a sentence more severe than the minimum sentencing option presented to it, indicating that it would not have imposed an alternative sentence had it been provided that option. Miller , 97 Ark. App. at 287, 248 S.W.3d at 489. Here, Mondy was sentenced to twenty years' imprisonment on each count, the maximum sentence, to run consecutively. We therefore affirm the circuit court's denial of Mondy's request for an alternative-sentencing instruction.
Affirmed.
Klappenbach and Whiteaker, JJ., agree. | [
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MIKE MURPHY, Judge
This no-merit appeal returns to us after we ordered rebriefing and denied counsel's motion to withdraw. Rigsby v. State , 2019 Ark. App. 17. The briefing deficiencies have been corrected by counsel, and we affirm the revocation of appellant Joshua Rigsby's probation and grant counsel's motion to withdraw.
Rigsby pleaded guilty in February 2017 to the crime of theft by receiving and received a six-year term of probation. The State filed a petition to revoke in May 2017 alleging three violations of probation. Following a hearing, the Miller County Circuit Court revoked Rigsby's probation and sentenced him to six years in the Arkansas Department of Correction. Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(k), Rigsby's counsel has filed a motion to be relieved as his attorney in which he alleges that this appeal is without merit. Counsel has also filed a brief in which he contends that all adverse rulings have been abstracted and discussed. Rigsby was provided with a copy of his counsel's brief and motion and informed of his right to file pro se points, which he has chosen to do.
On appeal of a revocation, we review whether the circuit court's findings are clearly against the preponderance of the evidence. Vail v. State , 2019 Ark. App. 238. To revoke probation, the State has the burden of proving by a preponderance of the evidence that a condition of probation was violated. Id. Because the burden of proof is by a preponderance of the evidence rather than beyond a reasonable doubt, evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Id. Proof of just one violation of the probation terms and conditions is sufficient to support revocation. Id.
A request to withdraw because the appeal is wholly without merit must be accompanied by a brief that contains a list of all rulings adverse to appellant and an explanation as to why each ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1). The brief must contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Id. In deciding whether to allow counsel to withdraw from appellate representation, the test is not whether counsel thinks the circuit court committed no reversible error but whether the points to be raised on appeal would be wholly frivolous. Brown v. State , 2018 Ark. App. 367, 553 S.W.3d 787. Pursuant to Anders , we are required to determine whether the case is wholly frivolous after a full examination of all the proceedings. T.S. v. State , 2017 Ark. App. 578, 534 S.W.3d 160.
As an initial matter, we need not address the merits of Rigsby's points on appeal. He first argues that he did not receive adequate notice of the revocation hearing under Arkansas Code Annotated section 16-93-308(a)(3). This argument is not preserved for our review because it was not made to the circuit court at the revocation hearing. Below, Rigsby objected to the hearing on the basis of the sixty-day rule, not on lack of notice.
Next, Rigsby argues that the circuit court's findings that he committed commercial burglary and was a felon in possession of a firearm are not supported by sufficient evidence. However, he does not challenge the circuit court's finding that he failed to pay the court-ordered financial obligations; Rigsby admitted below that he had never made a payment. The court specified that the court-ordered obligation was separate from the supervision fees. Because he failed to challenge all of the circuit court's grounds for revocation, we affirm without addressing the merits of the order. Cox v. State , 2017 Ark. App. 73, at 2.
In the no-merit brief, counsel has adequately explained why an appeal would be wholly frivolous. Rigsby's probation was conditioned on not owning, controlling, or possessing a firearm or being in the company of any person possessing one, and not committing a criminal offense punishable by imprisonment. The evidence showed that Rigsby committed the felony offense of possession of a firearm by certain persons and commercial burglary. At the revocation hearing, Sergeant Zachary White of the Texarkana Police Department testified that he was called in on a commercial burglary of the Save-A-Lot early on the morning of April 28, 2016. He recalled that a vehicle had driven through the front doors, and the ATM had been removed. White further testified that he obtained a search warrant for the Rigsby residence, and when it was executed, both Rigsby and his wife, Crystal Rigsby, were present in the apartment. Under the mattress in the bedroom, the police found a firearm. Rigsby was subsequently arrested for committing the criminal offense of possession of a firearm by certain persons. Crystal testified that she did not know where the gun had come from and that she had never seen Rigsby with it. Rigsby himself testified that he had no knowledge that there was a gun in the apartment.
At the end of the hearing, the circuit court found by a preponderance of the evidence that Rigsby had committed the offense of commercial burglary as well as being a felon in possession of a firearm. In addressing the felon-in-possession charge, the circuit court noted the testimony that "there were only two individuals who customarily were in the bedroom at that residence, one of them being Ms. Rigsby who denied knowledge of said firearm."
In revoking Rigsby's probation on the basis of the felon-in-possession charge, the circuit court found Crystal more credible than Rigsby. We give great deference to the circuit court in determining the preponderance of the evidence because it is in a superior position to determine the credibility of witnesses and to determine the weight to be given to their testimony. Denson v. State , 2012 Ark. App. 105, at 4. Moreover, Crystal denied having knowledge of the gun when there was no indication that it would have been unlawful for her to possess a firearm. Thus, with a preponderance-of-the-evidence standard, counsel is correct that there can be no issue of arguable merit raised on appeal about whether the State proved this alleged violation. Because proof of just one violation of the probation terms and conditions is sufficient to support revocation, we need not address the other violations involving commercial burglary and the failure to pay fees.
The only other adverse ruling from the revocation itself was Rigsby's request for dismissal at the outset of the hearing. Rigsby moved to dismiss the revocation charges under the sixty-day rule provided by Arkansas Code Annotated section 16-93-307(b)(2) (Supp. 2013). Under section 16-93-307(b)(2), a revocation hearing must be held within sixty days of the defendant's arrest. Rigsby contends that because he was arrested on May 3 2016, and the revocation hearing was not held until December 5 2016, there was not compliance with the statute and that the circuit court's revocation was untimely and illegal. The court denied the motion because the case had been continued several times since June 20, 2016.
In his no-merit brief, counsel cites Givan v. State , 2013 Ark. App. 701, at 2-3, to support his argument that there is no issue of arguable merit. He correctly notes that the Givan decision stated a defendant is not prejudiced if he is incarcerated on another charge if more than sixty days elapsed before his revocation hearing. Here, Rigsby was in custody for reasons other than violating his probation. In addition, Rigsby sought and was granted two continuances, which put off his revocation hearing until December 5. For the reasons stated, we agree with counsel that the denial of Rigsby's motion to dismiss the revocation hearing for violation of Arkansas Code Annotated section 16-93-307(b)(2) cannot be a meritorious point for reversing the circuit court's findings.
Having reviewed the record, counsel's brief, and Rigsby's pro se points, we hold that counsel has complied with the requirements of both Anders and Arkansas Supreme Court Rule 4-3(k)(1) and that the appeal has no merit. We affirm the revocation of Rigsby's probation and grant his counsel's motion to be relieved.
Affirmed; motion to withdraw granted.
Virden and Brown, JJ., agree. | [
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ROBERT J. GLADWIN, Judge
Appellant Stephanie Meisch appeals the September 21, 2018 order by the Faulkner County Circuit Court terminating her parental rights to her two-year-old daughter, J.S. Pursuant to Linker-Flores v. Arkansas Department of Human Services , 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i) (2018), Meisch's counsel has filed a motion to withdraw and a no-merit brief asserting that there are no issues of arguable merit to support an appeal. The clerk of our court sent copies of the brief and the motion to withdraw to Meisch's address of record informing her of her right to file pro se points for reversal pursuant to Rule 6-9(i)(3). The packet was returned undeliverable, marked "return to sender." No additional contact information has been provided for Meisch to either the clerk's office or to the Public Defender Commission. Meisch has not filed any pro se points for reversal. We affirm the termination of parental rights and grant counsel's motion to withdraw.
I. Facts and Procedural History
The case began on June 12, 2017, when a caller reported to the Arkansas Child Abuse Hotline that Meisch was on methamphetamine "really bad," that she was blowing smoke into J.S.'s face, that J.S. had "horrible" diaper rash, and that Meisch would stay up for days and then pass out for a week. An investigation resulted in appellee Arkansas Department of Human Services (DHS) exercising an emergency removal of J.S. An affidavit attached to the emergency petition filed on June 15 noted that Meisch smelled of marijuana and was acting erratically while holding then six-month-old J.S. The following day, the court signed an emergency order giving custody of J.S. to DHS based on Meisch's drug use as alleged in the affidavit. The circuit court's emergency order noted that the family had a history with the state of Arizona, where Meisch previously had her parental rights terminated to four other children.
On June 27, the circuit court held a combined probable-cause and adjudication hearing and found that J.S. was dependent-neglected because Meisch was "visibl[y]" under the influence of drugs and/or alcohol while caring for J.S. The court also made a factual finding that Meisch had given birth to several other children and had lost custody of those children through legal proceedings in Arizona. The court ordered Meisch to cooperate and stay in contact with DHS; keep DHS informed of any and all status changes; participate in individual and family counseling as recommended by a therapist; refrain from illegal drugs and alcohol; submit to a drug-and-alcohol assessment; attend Alcoholics Anonymous/ Narcotics Anonymous (AA/NA) meetings at least three times a week and provide written documentation of attendance to DHS; complete parenting classes and demonstrate appropriate parenting skills; obtain and maintain stable housing and employment; maintain a clean and safe home for herself and for J.S.; and demonstrate an ability to protect J.S.
In October 2017, the circuit court noted in a review-hearing order that Meisch had (1) failed to appear at the hearing, (2) failed to comply with the case plan and court orders, (3) stopped attending visitation with J.S., and (4) made no progress toward alleviating or mitigating the causes of J.S.'s removal. The court further noted that DHS had provided information that Meisch had moved to Arizona.
At the January 2018 review hearing, the circuit court noted that Meisch's lack of compliance had not changed. She again failed to appear at the hearing, and she had neither had meaningful contact with DHS nor made any progress toward alleviating or mitigating the causes of J.S.'s removal. Similar findings were made at the April 10 review hearing, except that Meisch made a request-though not appearing-for her mother to be considered for placement in Arizona. The court noted that Meisch had relocated to Arizona.
On June 5, 2018, the court held a permanency-planning hearing and found in a subsequent order dated August 3 that the goal of the case would be adoption because J.S. was not being cared for by a relative and that it was not in her best interest to be placed with Meisch's mother. The court found that Meisch had not complied with the case plan or court orders in that she (1) had not had any contact with DHS or J.S. in five months; (2) was living in Arizona and had not completed the services outlined in the case plan and court orders, including drug rehabilitation, counseling, parenting, and visitation with her child; and (3) she had made no progress toward alleviating or mitigating the causes of J.S.'s removal from the home. The court set the case for a termination-of-parental-rights (TPR) hearing, and its findings were not appealed.
On June 20, 2018, DHS filed a TPR petition alleging that Meisch was unfit to parent J.S. for the following reasons:
a. That [J.S.] has been adjudicated by the [c]ourt to be dependent-neglected on June 27, 2017 and has continued out of the custody of [Meisch] for twelve (12) months and, despite a meaningful effort by [DHS] to rehabilitate the parent and correct the conditions which caused removal, those conditions have not been remedied by [Meisch]. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) [Supp. 2017) ].
b. That [J.S.] has been adjudicated by the [c]ourt to be dependent-neglected on June 27, 2017, and has continued out of the home of the noncustodial parent, Frank Sutter, for twelve (12) months and, despite a meaningful effort by [DHS] to rehabilitate the parent and correct the conditions that prevented the child from safely being placed in the parent's home, the conditions have not been remedied by Frank Sutter. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) .
c. [J.S.] has lived outside the home of [Meisch] and Frank Sutter for a period of twelve (12) months and both parents have willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with the juvenile. Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a) .
d. The parents, [Meisch] and Frank Sutter, have abandoned the juvenile. Ark. Code Ann. § 9-27-341(b)(3)(B)(iv).
DHS further alleged that it was in the best interest of J.S. for Meisch's rights to be terminated because Meisch had (1) not completed services aimed at remedying her substance-abuse issues, (2) not demonstrated that she could meet J.S.'s health and safety needs, and (3) abandoned J.S., and because J.S. could find permanency through adoption.
On September 4, 2018, a TPR hearing was held. Meisch testified that she had lived in Arizona since the end of February 2018-for seven months prior to the TPR hearing. She explained that she had married her current husband two months before the hearing but that she did not live with him because he was on parole and was not permitted to live with her. Although he is a felon, Meisch married him shortly before the TPR hearing, and her stated reason was that "he loves me, and I love him." Before she left for Arizona, she had not seen J.S. in six months; by the time of the TPR hearing, she had not seen J.S. in over a year.
When asked why she had moved, Meisch said she had to go away to "get right" because of her drug addiction. She acknowledged that the Arkansas Department of Children and Family Services (DCFS) provided her with a drug-and-alcohol assessment that she completed, but she acknowledged that she did not follow the recommendations or complete treatment. Meisch testified that she had no support system in Arkansas and that she moved back to Arizona where her family lives. She acknowledged that she has four other children who were adopted by two separate siblings of hers when she went to prison in Arizona on a drug-related conviction. Meisch admitted that she did not stay in contact with DCFS caseworkers after moving to Arizona but stated that she did send J.S. a package that was received. Meisch testified that her mother stayed in contact with DCFS and attended at least one hearing remotely from Arizona that Meisch did not attend. Meisch explained that she did not attend many of the hearings during the case because she either could not afford the trip, or her work schedule did not permit the time off.
Regarding her drug use, Meisch said that she had been sober since the day her mother picked her up from Arkansas and took her to Arizona-approximately six months. She acknowledged that she tested positive on a hair-follicle test for meth and marijuana and that J.S. tested positive for marijuana, meth, and opiates. She stated that she believed she would pass a hair-follicle test and be negative for all illegal substances on the day of the TPR hearing, and she explained that she tried to get random drug screens in Arizona but that she could not get Arkansas DCFS to cooperate with Arizona DCFS.
Meisch said she needed time to prove that she was not a "bad mom," that it "took [her] a minute to get things right," and that she is "working on it." Meisch noted that after arriving in Arizona, she sought intensive help for herself and underwent a lengthy intake with Southwest Behavioral & Health Services that included completing both substance-abuse-relapse and parenting classes. She attended weekly drug meetings, counseling, and NA meetings. However, Meisch could not recall the NA steps and conceded that she never obtained a sponsor. Meisch testified that she underwent drug screens for her employment in the casino industry in Arizona, but she could not produce the results of those tests because her employer paid for them. She did produce a chain-of-custody form showing that she had undergone a drug screen. She said she was using drugs daily before she left Arkansas but that she had been sober since leaving on February 23.
As for her employment and living situation, Meisch explained that she had worked several jobs, quitting each to take a better job. By the end of July 2018, she had saved enough money to rent her own apartment. She clarified, however, that because of her history, she could not obtain the lease in her name, so her grandmother signed the lease for her. Meisch stated that she also took care of her criminal fines by paying off nearly $ 7,000 that had accumulated over seventeen years related to various charges, such as driving on a suspended license and possessing drug paraphernalia.
Meisch testified that while she had not seen J.S. in a year, it was never her intent to abandon her, saying that she needed to get well. She said that she tried to call the caseworker in Arkansas but could not get a return call, and she then tried to have the case transferred. Meisch explained why she made the decisions that she had and that her intent was to get clean and stay clean, which she had done. She asked that she at least be allowed to stay in contact with the foster parents-who expressed a desire to adopt J.S.-so that she could know that her daughter is okay.
Cheryl Taylor, the DCFS caseworker assigned to Meisch's case, testified that she previously had contact with Meisch in August 2017, over a year before the TPR hearing. She explained that Meisch had sent her a letter in March 2018 asking that her mother be considered for an Interstate Compact on the Placement of Children (ICPC) placement in Arizona. Taylor said the ICPC paperwork was not completed until April 2018 even though Meisch's mom had contacted her at the beginning of the case.
Taylor confirmed that Meisch had not seen J.S. since August 2017 but that she had sent cards and stuffed animals for J.S. Taylor testified that Meisch had completed a drug assessment in September 2017 that resulted in a drug-treatment recommendation. Taylor said that Meisch did not comply with DHS's recommendation and also failed to complete other services in Arkansas, such as parenting classes and counseling. Taylor did not recall receiving any voicemails or messages from Meisch after she left for Arizona, although she did recall talking to Meisch's mother about the ICPC and that it appeared the family's plan for getting J.S. out of foster care was to rely on the ICPC study.
Laura Rogers, the DCFS supervisor, testified and acknowledged that the DCFS counterpart in Arizona could have been asked to assess Meisch's home there, and that in other cases, they had been fairly successful in getting the other state to perform an assessment. She also acknowledged that she could have done the same with random drug screens, although she noted that in the past, DHS had been less successful when working with other states on that issue.
Meisch argued that her uncontroverted testimony should be taken at face value. She stated that it demonstrated that none of the grounds had been proved and that she should be given additional time to demonstrate that her home is appropriate for J.S.'s return. Meisch asserted that she had been sober for a sufficient amount of time to alleviate any health and safety concerns for J.S. should she be placed in Meisch's custody.
The circuit court found that Meisch's "self-serving" testimony was not credible. The court noted that while Meisch testified that she was unable to get in touch with DHS for a year, Meisch's mother was able to stay in touch with the caseworker in an effort to obtain an ICPC home study. The court further noted that Meisch had taken no initiative to see her daughter in a year, that she relied on her mother to tend to the issues with DHS and J.S.'s placement in foster care, and that even if she elected to move away to escape the drug lifestyle, she also chose to have no meaningful contact with J.S. The court noted finally that the ICPC home study was deemed by the court to not demonstrate a suitable placement for J.S.-that finding was not appealed-and that there would be potential harm in sending J.S. to "unknowns" in Arizona. The court memorialized its findings in a written TPR order filed on September 21, 2018, and Meisch filed a notice of appeal on October 12, 2018.
II. Standard of Review
We recently reiterated our standard of review in Riggs v. Arkansas Department of Human Services , 2019 Ark. App. 185, at 5-6, 575 S.W.3d 129, 132 :
We review termination-of-parental-rights (TPR) cases de novo. At least one statutory ground must exist, in addition to a finding that it is in the children's best interest to terminate parental rights. A best-interest finding under the Arkansas Juvenile Code must include consideration of two factors, the likelihood of adoption and potential harm. However, adoptability is not an essential element of proof. The statute does not require any "magic words" or a specific quantum of evidence regarding a child's adoptability but simply provides that the circuit court consider the likelihood that the child will be adopted in making its best-interest determination. Potential harm must be viewed in a forward-looking manner and in broad terms, including the harm the child suffers from the lack of stability of a permanent home.
(Citations omitted.)
III. Analysis
In accordance with Arkansas Supreme Court Rule 6-9(i)(1)(A), counsel for Meisch has reviewed the record for all adverse rulings made by the circuit court on all objections, motions, and requests made by her at the hearing from which the appeal arose. Other than the TPR order itself, there were two objections made in which the court ruled adversely to Meisch.
A. Termination of Parental Rights
The primary issue before the court is whether there was sufficient evidence to support the circuit court's TPR order. Based on a conscientious review of the record, counsel has determined that there is no meritorious basis on which to argue that the evidence was insufficient, either as to the grounds alleged in support of TPR or as to the circuit court's finding that TPR was in J.S.'s best interests.
A circuit court may permanently terminate a parent's rights to his or her child if the court finds by clear and convincing evidence that termination is in the best interest of the child, that one ground for termination exists, and that there is an appropriate permanency-placement plan for the child. Ark. Code Ann. § 9-27-341(b). When considering whether termination is in the best interest of the child, the circuit court should consider (1) the likelihood that the child will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i),(ii).
Regarding grounds, evidence of only one ground is needed to support TPR. Albright v. Ark. Dep't of Human Servs. , 97 Ark. App. 277, 248 S.W.3d 498 (2007). Here, the ground found by the circuit court that has the least potential for arguable merit is found at section 9-27-341(b)(3)(B)(ii)(a) , which allows for TPR if the child is out of the home of the parent for twelve months, and the parent has willfully failed to provide significant material support in accordance with the parent's means, or the parent has willfully failed to maintain meaningful contact with the child during that time. In order for a circuit court to find willful failure to maintain meaningful contact, the evidence must show that the parent was not prevented from visiting or having contact with the child by the child's custodian or any other person, taking into consideration the distance of the child's placement from the parent's home. Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(b) .
In Mayfield v. Arkansas Department of Human Services , 88 Ark. App. 334, 198 S.W.3d 541 (2004), this court affirmed a finding that a parent failed to maintain meaningful contact with her child when, during the pendency of the child's case, the parent moved out of state to gain financial support from her family but visited her child only when she returned to Arkansas for hearings. Similarly, our supreme court affirmed a finding of willful failure to maintain contact when a father discontinued his court-ordered visitation for almost six months. See Crawford v. Ark. Dep't of Human Servs. , 330 Ark. 152, 951 S.W.2d 310 (1997). Further, in Posey v. Arkansas Department of Human Services , 370 Ark. 500, 262 S.W.3d 159 (2007), our supreme court found willful failure to maintain meaningful contact when the father visited his children only twice, and instead of finding a job in Arkansas so as to be near the children and continue with court-ordered visitation, he decided to leave the state to seek work.
Here, Meisch did not see J.S. even while she was in Arkansas from August 2017 to February 2018, at which time she left for Arizona. Meisch then failed to return to Arkansas for eight months before returning for the TPR hearing. Pursuant to this court's precedent, the evidence constitutes a willful failure to maintain meaningful contact, and there would be no meritorious challenge to the circuit court's finding in that regard.
Addressing the "best interest" prong, counsel maintains that the facts and this court's precedent clearly and convincingly support the circuit court's finding that TPR was appropriate for J.S. First, there was substantial evidence that J.S. would likely find permanency through adoption if Meisch's parental rights were terminated. DHS caseworker Cheryl Taylor testified that the foster parents desired to adopt J.S. should she become available for adoption and that there were otherwise no barriers for her to find permanency through adoption. This is sufficient evidence to satisfy this prong of the "best interest" analysis. See Reed v. Ark. Dep't of Human Servs. , 2010 Ark. App. 416, 375 S.W.3d 709. Likewise, DHS produced more than sufficient evidence of potential harm. In assessing this factor, a court is not required to find that any actual harm will result or to identify a particular harm; instead, the harm analysis is to be conducted in broad terms. Dowdy v. Ark. Dep't of Human Servs. , 2009 Ark. App. 180, 314 S.W.3d 722. As previously described, Meisch chose to move to Arizona, and she ceased contact with DHS. She did not return to Arkansas to attend any hearings, and at the time of the TPR hearing, she had not seen J.S. in over a year. Also, shortly before the TPR hearing, she married a paroled felon who could not yet live with her because of the terms of his parole.
Although Meisch said she left Arkansas to escape the drug lifestyle and to be with people who are a support system for her, the circuit court found that she did not take any initiative once she arrived in Arizona to stay in touch with either J.S. or DHS and that her poor choices left the court with no other option but to find other permanency solutions for J.S. The court found that returning J.S. to Meisch in Arizona, where there are so many "unknowns," would subject J.S. to potential harm. See Harbin v. Ark. Dep't of Human Servs. , 2014 Ark. App. 715, 451 S.W.3d 231 (holding evidence of potential harm sufficient because mother was in relationship with felon, compliance was "eleventh-hour," and mother continuously made decisions contrary to the best interest of her child); Stockstill v. Ark. Dep't of Human Servs. , 2014 Ark. App. 427, 439 S.W.3d 95 (holding evidence of potential harm sufficient where father's housing was uncertain, he missed visitation, and he failed to participate in early part of case). Accordingly, there was ample evidence to satisfy DHS's burden of proof in regard to the "best interest" factor supporting TPR.
B. Other Rulings Adverse to Meisch
The first adverse ruling occurred when DHS counsel asked Meisch about her lease in Arizona: "If I have a document that shows the owners as Ryan Bates and Deanna Dalgreen, do you know who they are?" Meisch's counsel objected because it was speculative and lacked foundation, stating it was unclear whether the document actually existed because of the question's phrasing. The circuit court overruled the objection, finding that it was merely a question as to whether Meisch knew these particular people and that it did not matter whether the document existed-that DHS counsel simply wanted to know if Meisch knew two people with the names Ryan Bates and Deanna Dalgreen.
We agree with counsel that the circuit court's ruling provides no basis for a meritorious challenge. Counsel for DHS was not asking Meisch to speculate, and it did not matter if the document on which the reference to the names was predicated existed. It was simply a question about two people with various names and whether Meisch knew them. Moreover, as the circuit court later pointed out, the objection ultimately became moot after Meisch's counsel subsequently introduced the lease, which cured any issue Meisch's counsel had regarding the source of the names.
The second adverse ruling resulted from an objection to a question asked by the attorney ad litem, who attempted to call Meisch's credibility into question. Meisch testified that her mother had driven her to work. The ad litem then asked Meisch if it would surprise her that her mother had testified at the previous hearing that she had talked to Meisch only a couple of times and had not seen her. Meisch's counsel objected, arguing that it was not relevant and constituted improper impeachment because Meisch could not be responsible for what her mother had said. The circuit court overruled the objection, finding that it went to Meisch's credibility.
We hold that the circuit court's ruling provides no basis for a meritorious challenge. The ad litem used a statement made by Meisch's mother at a previous hearing to attack Meisch's credibility because the prior statement contradicted Meisch's statement. The ad litem simply asked if Meisch would be surprised to know that her mother had given contradictory testimony and gave Meisch an opportunity to explain. However, even had the question been improper, the circuit court's allowance would not amount to reversible error because the remaining evidence was so overwhelmingly against Meisch.
IV. Conclusion
Based on a diligent study of the record, appellate counsel for Meisch, in her professional judgment, believes that the record clearly and convincingly supports the decision of the circuit court to terminate Meisch's parental rights. The statutory requirements were met, and the evidence presented at the TPR hearing established that J.S. could not be returned to Meisch at that time or within a reasonable period of time thereafter. The circuit court correctly applied the law to this case, and any argument challenging the sufficiency of that evidence would be wholly frivolous.
Affirmed; motion to withdraw granted.
Switzer and Hixson, JJ., agree.
The parental rights of J.S.'s father, Frank Sutter, were terminated by the same order, but he is not a party to this appeal.
This occurred after what appears to be an attempt to forward the packet to appellant by the U.S. Post Office. A notation on the envelope by the U.S. Post Office reflects delivery attempts on January 31, February 6, and February 15, 2019, and it was forwarded to an additional address on February 23, 2019. Further notation on the envelope reflects delivery attempts on February 25, March 2, and March 12, 2019.
The caseworker clarified at the TPR hearing that Meisch had actually not seen J.S. in over a year, and Meisch did not dispute this. | [
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BART F. VIRDEN, Judge
In December 2000, the Benton County Property Owners' Improvement District No. 7 (the "District") issued $ 4.4 million in special-assessment bonds to fund the construction of infrastructure improvements for the proposed Sugar Creek subdivision in Benton County. Appellants Larry Williams, Gregory Peck, and Pete Netzel, who were investors in the development company that made the improvements to the land, each executed guaranty agreements in which they guaranteed payment of the principal and interest due on the bonds at maturity. The bonds matured ten years later with an unpaid principal balance of $ 3.48 million. Special-assessment taxes, which the District pledged as security for repayment of the bonds, were also delinquent. Appellee Bank of the Ozarks (the "Bank"), as trustee for the bondholders, sued the appellants for breach of contract when they failed to pay the unpaid balance according to the terms of their guaranty agreements. The circuit court granted summary judgment in favor of the Bank. The appellants now appeal the circuit court's order. We affirm.
I. Factual Background
In 2000, several property owners in Benton County petitioned the county court to form an improvement district for the purpose of creating a residential subdivision. The court granted the petition and formed the District for the purpose of making the infrastructure improvements typical of a subdivision, including the construction of waterworks and the paving of streets and sidewalks. The court also appointed three persons named in the petition to the District's board of commissioners.
Shortly thereafter, the District hired an engineer to prepare plans for the subdivision, including the specifications for the infrastructure and improvements. The District also hired an assessor to calculate the "assessed benefit," or the difference between the current value of the property and its increased value with the proposed improvements, for each parcel in the district.
The District used the assessed benefit to calculate a special tax, which constituted a lien on the property and was due annually to the county tax collector. The District issued an order on November 3, 2000, that levied the tax, and on December 1, 2000, it entered into a pledge-and-mortgage agreement in favor of the Bank.
The pledge and mortgage provided, in pertinent part, that the maturity date of the bonds was December 1, 2010, and the District pledged the proceeds of the special tax to the Bank "for the purpose of securing the payment of the [b]onds and the interest thereon as they severally mature[.]" The pledge and mortgage further provided that the special tax "shall be levied and collected annually until the principal of and interest on all outstanding [b]onds are paid in full[,]" and it defined the term "bonds outstanding" as "[b]onds of the District which have not matured." It declared, moreover, that a default occurred when, inter alia , there was a "default in the payment of the principal of or interest on any [b]ond when due[.]"
The pledge and mortgage also addressed how the Bank was to apply the tax proceeds once it received them from the District. First, the Bank was required to deposit money into a "Bond Fund" to "pay all principal of, interest on, and [t]rustee's fees in connection with the [b]onds which will mature or become due" in the following year. Second, the Bank was to make deposits into a "Debt Service Reserve Fund" whose assets "shall be applied to pay [t]rustee's fees, interest on the [b]onds, and principal of the [b]onds to the extent moneys in Bond Fund are insufficient for that purpose."
The appellants, who were investors in Sugar Creek, LLC, the developer and principal owner of the property in the proposed subdivision, thereafter executed identical guaranty agreements "as [an] inducement to the purchase of the bonds." The agreements provided that in the event of a default, each appellant agreed "to pay the principal and accumulated interest on the [b]onds at maturity or earlier redemption," and the appellants' obligations as guarantors arose "absolutely and unconditionally when the [b]onds [were] issued, sold, and delivered by the District." (Emphasis added.)
The appellants apparently expected that the bonds would be redeemed well before the maturity date, as each lot sold to buyers who could pre-pay the special tax associated with each lot at the time of purchase. Sales apparently did not go as expected, however, and according to the appellants, "in 2010, there was a realization that the bonds would not be paid off when [they] matured on December 1, 2010." As a result, the appellants-who had been paying the special taxes on the unsold lots-did not pay the 2010 special-assessment tax when it became due on October 10, 2010, because, as the appellants admitted below, "default on the bonds was imminent."
Indeed, the bonds matured on December 1, 2010, with an outstanding balance of $ 3.48 million. On January 4, 2011, the Bank brought an action to foreclose on the pledge and mortgage securing the bonds. The appellants and other guarantors were originally named as defendants to the lawsuit, but they were later dismissed without prejudice. On February 7, May 2, and July 14, 2012, the Bank was awarded partial judgments granting foreclosure on the real property in the subdivision. The property was later sold to the Bank for credit bids totaling $ 1,492,000, leaving an outstanding principal balance of $ 1,988,000 due on the bonds.
On February 29, 2012, shortly before the first foreclosure sale, James McCord, the attorney for the District, wrote a letter to the Benton County Collector that the appellants would later assert was evidence of a coordinated effort-with the Bank-to have the special tax removed before the Bank purchased the property in foreclosure (whereupon, the appellants say, the Bank would have been liable to pay the special tax). In the letter, Mr. McCord erroneously told the collector that "the [b]onds sold by the District matured on February 1, 2010," and he requested that she "have the records in the Benton County Collector's Office reflect that the tax levied by the District is not delinquent on any lot or parcel in the District for years 2010 or 2011." Mr. McCord also told the collector that "[n]o taxes are due the District for 2012 or any future year," and he further requested removal of "the tax levied by Benton County POID No. 7 -Sugar Creek Project from the [c]ollector's tax roll for improvement districts."
On April 1, 2015, the Bank filed a complaint in the Circuit Court of Benton County alleging that the appellants breached their guaranty agreements when they "failed to pay their proportional part of the remaining balance due on the [b]onds in spite of demand therefor." The Bank sought each appellant's share of the $ 2,802,539 total principal and accumulated interest that remained outstanding, as well as attorney's fees.
On June 29, 2017, the Bank followed its complaint with a motion for summary judgment, arguing that the undisputed facts demonstrated that each appellant executed an absolute guaranty that fixed his liability for the outstanding debt on the bonds when they matured on December 1, 2010, and they failed to pay their respective percentage of the indebtedness.
The appellants filed countermotions for summary judgment. According to the appellants, the undisputed facts demonstrated that they were relieved of their obligations as guarantors because the Bank "failed to meet certain conditions of the [g]uaranty [a]greement" and thereby materially altered its terms. The appellants also asserted that the Bank could not enforce the guaranty agreement because it "improperly released the collateral [i.e., the special tax] securing the debt obligation guaranteed by the guarantors."
Specifically, the appellants argued that their contract with the Bank was embodied not only in the guaranty agreement, but also in the tax order and the pledge and mortgage. Taken together, the appellants said, these documents-and Arkansas law-established that their liability as guarantors was conditioned on the Bank's continued collection of the special tax after the bonds matured and until they "were paid in full." According to the appellants, the Bank materially altered the conditional guaranty agreements-and impaired the collateral securing the debt on the bonds-when it failed to ensure the collection of the special tax beyond the maturity date of the bonds and, in alleged coordination with Mr. McCord, sought to have the special tax removed from the rolls of the county collector. The appellants asserted, therefore, that these facts discharged them from liability.
The circuit court granted the Bank's motion for summary judgment and denied the appellants' countermotion for summary judgment. The circuit court ruled that the guaranty agreements were "not ambiguous, " and the obligations of the appellants "were fixed upon default which occurred on October 10, 2010[,] when the [s]pecial [t]ax became delinquent and when the [b]onds matured [on] December 10, 2010[.]" The circuit court also ruled that "[a]fter the [b]onds matured, the [Bank] was not obligated to continue to assess and collect the [s]pecial [t]ax because by definition in the pledge and mortgage, the [b]onds were no longer outstanding." Moreover, according to the circuit court, the guaranty agreements "constitute[d] absolute and unconditional guaranties, and, by their terms, the [appellants] waived their right to an impairment of collateral defense or to challenge the acts or omissions by the [Bank]."
On appeal, the appellants first argue that the circuit court erred by ruling that the guaranty agreements were not materially altered by the Bank's alleged failure to collect the special tax after the bonds had matured. According to the appellants, Arkansas law, as well as the tax order and pledge and mortgage, establish that their liability as guarantors was conditioned on the continued collection of the special tax. The appellants additionally argue, in a related point, that the Bank's failure to ensure the continued collection of the tax was an unjustified impairment of collateral that released them from liability under the guaranty agreements.
In response, the Bank argues that the circuit court correctly ruled that the guaranty agreements were unambiguous, and therefore, the parol-evidence rule prohibited using the pledge and mortgage and the taxing order to vary the meaning of the plain language in the guaranty agreement. According to the Bank, the absolute and unconditional terms of the guaranties fixed the appellants' liability at default, and therefore, events that occurred after the bonds had matured could not release the appellants from liability. The Bank also asserts that the absolute and unconditional terms of the guaranty agreements waived any claim of impairment of collateral.
Appellants Larry Williams and Gregory Peck further argue that the circuit court erred by granting summary judgment because there was a genuine issue of material fact regarding the Bank's alleged misapplication of money from the Debt Service Reserve Fund. According to Williams and Peck, the Bank has not rebutted evidence demonstrating that, in alleged violation of the terms of the pledge and mortgage, the Bank applied money from the fund toward fees and other miscellaneous expenses, rather than toward the principal on the bonds.
II. Standards of Review
A circuit court may grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Blevins v. Hudson , 2016 Ark. 150, at 3, 489 S.W.3d 165, 167. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id.
"Ordinarily, on appeal from a summary-judgment disposition, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party." Abraham v. Beck , 2015 Ark. 80, at 8, 456 S.W.3d 744, 751. "[I]n a case where the parties agree on the facts," however, "we simply determine whether the appellee was entitled to judgment as a matter of law." Id. at 8, 456 S.W.3d at 751-52. Indeed, "[w]hen parties file cross-motions for summary judgment ... they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case." Id. at 8, 456 S.W.3d at 752. "As to issues of law presented, our review is de novo." Id.
III. Discussion
As we indicate above, the appellants argue that their agreement is demonstrated not only by the guaranty documents themselves, but also in the pledge and mortgage and the taxing order, which they say demonstrate that the Bank had an obligation to ensure collection of the special tax after the bonds had matured. They also allege that continued collection of the special tax was required by Arkansas law. They assert, therefore, that the Bank's alleged failure to collect the special tax after the bonds had matured was a material alteration and an impairment of collateral that released them from liability.
A. Parol Evidence
"The parol-evidence rule prohibits the introduction of extrinsic evidence, parol or otherwise, which is offered to vary the terms of a written agreement; it is a substantive rule of the law, rather than a rule of evidence, and its premise is that the written agreement itself is the best evidence of the intention of the parties." Hurt-Hoover Invs., LLC v. Fulmer , 2014 Ark. 461, at 11, 448 S.W.3d 696, 703. "Where the meaning of a written contract is ambiguous," however, "parol evidence is admissible to explain the writing." Id. at 12, 448 S.W.3d at 703. "The initial determination of the existence of ambiguity rests with the court and, if the writing contains a term which is ambiguous, parol evidence is admissible and the meaning of the ambiguous term becomes a question of fact for the fact-finder." Id.
The appellants notably do not take issue with the circuit court's ruling that the terms of the guaranty agreement are unambiguous, and looking to the language of the agreements, it is plain that (1) the appellants unconditionally guaranteed the payment of the bonds; (2) their liability as guarantors would arise when the bonds matured; and (3) the Bank did not assume any responsibility for the collection of the special tax. We find it unnecessary, therefore, to examine extrinsic evidence to interpret the agreements.
Indeed, the guaranty agreements declare that "[t]he obligations of [the guarantors] ... shall arise absolutely and unconditionally when the Bonds shall have been issued, sold, and delivered by the District." The agreements further provide that the guaranties "and, hence, ... sums due at maturity or redemption is in no way dependent on the completion of the [p]roject or quality of construction," and therefore, the appellants' obligations were "absolute and unconditional."
Moreover, the guaranty agreements plainly provide that the appellants "guarantee[d] to the [Bank] the payment of all sums necessary ... to pay the principal and accumulated interest on the [b]onds at maturity or earlier redemption. " (Emphasis added.) The appellants also agreed that the Bank "may make demand on [the guarantors] ... at any time after the [s]pecial [t]ax becomes due or the principal matures , in its sole discretion." (Emphasis added). Finally, the appellants agreed that the Bank "assume[d] no responsibility whatsoever for collecting sufficient sums in this manner to pay any of the [s]pecial [t]ax or any sums due at maturity." Accordingly, because the appellants do not identify any ambiguous terms warranting the examination of extrinsic evidence-and there are none-we look only to the guarantee agreements to determine whether the removal of the special tax was a material alteration that discharges the appellants from liability.
B. Material Alteration
"A guarantor, like a surety, is a favorite of the law, and [his] liability is not to be extended by implication beyond the expressed terms of the agreement or its plain intent." Helena Chem. Co. v. Caery , 93 Ark. App. 447, 452, 220 S.W.3d 235, 237 (2005) (internal quotation and citations omitted). "A guarantor is entitled to have [his] undertaking strictly construed and [he] cannot be held liable beyond the strict terms of [his] contract." Id. "Any material alteration of the obligation assumed, made without the consent of the guarantor, discharges [him]." Id. For the reasons that follow, the removal of the special tax did not constitute a material alteration of the guaranty agreements, as the appellants claim.
As we note above, the guaranty agreements were "absolute and unconditional," and therefore, the liability of the appellants as guarantors "became fixed upon default." Lindell Square Ltd. P'ship v. Savers Fed. Sav. & Loan Ass'n , 27 Ark. App. 66, 76, 766 S.W.2d 41, 47 (1989). Additionally, the agreement makes it plain that the appellants would be liable for any outstanding debt when the bonds mature, and the Bank does not assume any responsibility for collection of the special tax. The failure to collect the special tax after the bonds had matured, therefore, did not materially alter the appellants' obligations under the guaranty agreement.
C. Arkansas Law
The appellants also argue, however, that the choice-of-law provision in the guaranty agreement, providing that it "shall be construed and enforced in accordance with the laws of the State of Arkansas," gave them the expectation that the Bank would follow Arkansas law as it carried out its obligations under the guaranty agreements. They appear to argue, in particular, that Arkansas Code Annotated section 14-93-126(a)(2)(A) (Repl. 1998), providing that the District "shall see to it that a tax is levied annually and collected ... so long as it may be necessary to pay any bond issued," obligated the Bank to do the same. Appellant Netzel additionally suggests Arkansas Code Annotated section 14-93-123(h)(1) (Repl. 1998), providing that those who purchase land after a tax foreclosure must pay any future special tax associated with it, required the Bank to pay the special tax after it had purchased the subdivision's property in foreclosure. Even if we could agree that Arkansas law required collection of the special tax beyond the maturity date of the bonds, we decline to reach these arguments because the appellants failed to preserve them with a ruling in the circuit court.
"An appellant has the burden to obtain a ruling on an issue in order to preserve the issue for appeal." Sloop v. Kiker , 2016 Ark. App. 125, at 4, 484 S.W.3d 696, 699. This court will not reach an issue in the absence of a ruling, nor will it presume a ruling from the circuit court's silence. Id. Therefore, when a circuit court's order specifies particular grounds for the court's decision, only those grounds are subject to the court's review. Id. "Other arguments that the appellant raised below but did not obtain a ruling on are not preserved for appeal, and we are precluded from addressing them." Id.
Citing sections 14-93-123 and 14-93-126, the appellants argued below that the Bank's motion for summary judgment should be denied-and theirs granted-because they "relied upon the [Bank's] adherence to Arkansas law which makes clear that the [s]pecial [t]ax will continue to be collected until the bonds are fully retired." A rejection of this argument, however, is not among the particular grounds underlying the circuit court's decision. Indeed, the circuit court relied only on the terms of the pledge and mortgage to rule that the Bank "was not obligated to continue to assess the [s]pecial [t]ax" after the bonds had matured. Accordingly, because the appellants failed to obtain a ruling on their arguments based on Arkansas law, we decline to reach the issue.
D. Impairment of Collateral
The circuit court likewise did not err by ruling that the appellants waived their defense of impairment of collateral. "[A]n absolute and unconditional guaranty which contains a term providing that omission of the holder does not affect the liability of the guarantor waives any defense based on impairment of collateral." Smith v. Elder , 312 Ark. 384, 395, 849 S.W.2d 513, 519 (1993).
As we discussed above, the guaranty agreements establish that the appellants' obligations were absolute and unconditional. They provide, moreover, that "[n]o delays or omission to exercise any right or power accruing upon any default, omission or failure or performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof[.]" The agreements additionally provide that the Bank "assum[ed] no responsibility whatsoever for collecting sufficient sums ... to pay any of the [s]pecial [t]ax or any sums due at maturity." Therefore, because the appellants quite clearly waived their current claim of impairment of collateral, we affirm.
E. The Debt Service Reserve Fund
In the circuit court, separate defendant Frank Miller filed a response to the Bank's motion for summary judgment and brief in support on July 20, 2017, arguing, among other things, that the Bank's motion should be denied because there was a genuine issue of material fact regarding whether the Bank fulfilled its obligation, as provided in the pledge and mortgage, to apply money held in the Debt Service Reserve Fund to the principal owed on the bonds. According to Miller, the Bank's answers to interrogatories indicated that it "muddled disbursements from the Debt Service Reserve Fund with disbursements from a separate account titled 'Administrative Fund' " and did not direct any money "toward reduction of the principal and accrued interest on the bonds." The circuit court granted the Bank's motion for summary judgment without addressing the Debt Service Reserve Fund. Appellants Williams and Peck, claiming that they adopted Miller's argument by reference in their arguments in the circuit court, now assert that the circuit court erred when it failed to find a genuine issue of material fact on this issue. Because Williams and Peck failed to obtain a ruling on this issue, we affirm.
"An appellant has the burden to obtain a ruling on an issue in order to preserve the issue for appeal," Sloop , 2016 Ark. App. 125, at 4, 484 S.W.3d at 699, and the circuit court did not address the appellants' argument regarding the Debt Service Reserve Fund in its order granting the Bank's motion for summary judgment. Moreover, the circuit court's order, which relies on particular grounds to grant the Bank's motion for summary judgment, is not-contrary to Williams's and Peck's argument-a "blanket ruling" that encompasses this issue.
Therefore, we also decline to reach this argument regarding the Debt Service Reserve Fund and affirm.
IV. Conclusion
The unambiguous terms of the guaranty agreements demonstrate that the appellants' obligations as guarantors were fixed when the District failed to pay the bonds when they matured on December 1, 2010. The subsequent failure to collect the special tax after the bonds had matured, therefore, did not materially alter the terms of the guaranty agreements. The appellants also waived any defense of impairment of collateral when they agreed that their obligations were absolute and unconditional, and any omission by the Bank did not affect their liability. The appellants' arguments concerning application of Arkansas law and the Debt Service Reserve Fund, moreover, are not preserved for our review. Accordingly, we affirm the circuit court's order granting the Bank's motion for summary judgment and denying the appellants' countermotions for summary judgment.
Affirmed.
Murphy and Brown, JJ., agree.
Pete Netzel died while this appeal was pending. Karen Netzel, as trustee of the Netzel Joint Trust, was substituted as a party on August 22, 2018.
The Bank was collecting the taxes in the District's stead pursuant to Arkansas Code Annotated section 14-93-123(d)(B)(2) (Repl. 1998), which provides that "[i]n case the commissioners shall fail to commence suit within sixty (60) days after the taxes become delinquent, the holds of any bond issued by the district or any trustee on behalf of the holder of any bond issued by the district shall have the right to bring suit for the collection of the delinquent assessments[.]"
Indeed, the appellants' admission below-that they stopped paying the special tax when default on the bonds was imminent-suggests that, contrary to their assertions here, they understood that collection of the special tax would cease when the bonds matured. | [
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MEREDITH B. SWITZER, Judge
Teakqwanda Reed appeals the Workers' Compensation Commission's decision denying compensability of injuries she allegedly suffered on three different dates while employed by appellee First Step, Inc. First Step initially accepted Reed's first two injuries as compensable but ultimately controverted those two incidents in their entirety; the third incident was always controverted. Reed contends substantial evidence does not support the Commission's denial of compensability. We affirm in part and reverse and remand in part.
I. Facts
Reed alleged she injured her left shoulder and the left side of her neck on August 25, 2015, when she was lifting files out of a filing cabinet and felt a "pull" and "burning" on her left side from her neck and shoulder area down to her fingers. Dr. Mark Larey, who saw Reed on the date of the injury, diagnosed her with a sprain/strain of the neck and pain in her left arm. Although Dr. Larey's exam revealed no swelling, bruising, or wound of Reed's cervical spine, he noted a palpable spasm. Dr. Larey placed Reed on restricted duty and prescribed prednisone, Ultracet, and Flexeril. Dr. Larey saw Reed again on September 9, and he again noted a palpable spasm in Reed's cervical region. Reed was prescribed Xanax and remained on restricted duty.
A September 14 MRI of Reed's cervical spine was normal, without evidence of spinal canal stenosis or neural foraminal narrowing. Dr. Larey examined Reed a third time on September 15; her symptoms remained unchanged, and Dr. Larey again noted a palpable spasm in her cervical spine. Reed was prescribed Voltaren, Flexeril, and acetaminophen with codeine, and she remained on restricted duty. Dr. Larey saw Reed again on October 1 and 19 and on November 9 and 23. He noted palpable spasms of Reed's cervical spine at these visits and continued Reed on restricted duty. An electromyography and nerve conduction study (EMG) of Reed's left shoulder was performed on November 25. According to Dr. Larey, the results were "well within normal limits."
Reed claimed her second injury occurred on December 16, 2015. As she was sitting in her chair filing papers in an accordion file on the floor, the chair came out from under her and she fell to the floor, hitting her right shoulder on her desk. According to Reed, when the chair flipped, it landed on her.
Dr. Larey examined Reed the same day. He noted her complaints of continued pain in her left shoulder from the first incident, and she complained of pain in her cervical, thoracic, and lumbar spine and in both shoulders due to the second injury. She also claimed that at the time of this injury, her left shoulder had not improved from the August 2015 incident. Dr. Larey noted that Reed was "diffusely tender" in the lumbar, thoracic, and cervical spine and in the shoulder-girdle regions, and she had decreased range of motion in her cervical spine and right shoulder. He diagnosed her with lumbar, thoracic, and cervical-spine strain in connection with her second injury. Reed remained on restricted duty.
An MRI of Reed's left shoulder was performed on January 14, 2016. The results of this MRI were "(1) degenerative changes of the acromioclavicular joint and findings suggesting impingement anatomy; (2) tendinosis of the supraspinatus tendon; and (3) degenerative changes humeral head." Dr. Larey examined Reed again on January 18, and although Reed continued to complain of pain and limited range of motion in her left arm and neck, Dr. Larey's examination of her left shoulder, shoulder girdle, and cervical spine was unremarkable; no palpable spasm was noted. Reed also complained of pain in her lower right back, her right thoracic-spine region, and her right shoulder; however, Dr. Larey noted no swelling, bruising, wound, or spasms in any of these areas. Dr. Larey discharged Reed from his care and returned her to regular duty on January 18 with instructions to complete her physical-therapy regimen. A physical-therapy note dated February 19, 2016, the last day of Reed's physical therapy, included a diagnosis of "right shoulder strain, lumbar strain with radiating right hip pain, spasms."
Reed was subsequently seen for her right-shoulder pain by Dr. Shahryar Ahmadi on August 2. An MRI of Reed's right shoulder, performed on August 23, revealed the following impressions:
(1) Findings suggestive of calcific tendinitis involving the infraspinatus tendons with increased signal within the infraspinatus and conjoined tendons which may be related to inflammatory changes from crystal deposition. Small amount of fluid in the subacromial/subdeltoid bursa.
(2) Severe acromioclavicular osteoarthritis.
(3) Small paralabral cysts adjacent to the mid anterior labrum which may be related to an underlying degenerative labral tear.
Based on the MRI results, Dr. Ahmadi recommended right-shoulder arthroscopy and debridement with possibility of rotator-cuff repair and biceps tenotomy for Reed.
On October 12, Dr. Kirk Reynolds performed an independent medical examination regarding Reed's right-shoulder symptoms from her December 16, 2015 injury. Dr. Reynolds noted Reed was tender to palpitation throughout the shoulder girdle, and her Neer and Hawkins impingement tests were positive. Dr. Reynolds reviewed the August 23 MRI of Reed's right shoulder and noted a
focus of calcific tendinitis involving the posterior fibers of the supraspinatus tendon and the majority of the infraspinatus tendon. Associated tendinopathy is seen in the remaining supraspinatus and infraspinatus tendons. There is reactive subacromial and subdeltoid bursitis. Degenerative arthrosis is seen in the acromioclavicular joint. No full thickness rotator cuff tear is seen. The long head biceps tendon is not well visualized on theses images; however, it is present.
Dr. Reynolds assessed Reed with right-shoulder pain associated with calcific tendinitis, acromioclavicular arthrosis, and biceps tendinitis. When asked whether there were any objective findings of Reed's right shoulder related to the mechanism of injury, he opined,
Objective findings are consistent with calcific tendinitis, biceps tendinitis and acromioclavicular arthrosis. It is my professional medical opinion that these represent findings of chronic disease in the shoulder. They are inconsistent with a single, traumatic episode. Also, I cannot correlate the mechanism of injury with any of the above findings. Certainly, less than 51% of the current pathology in Ms. Reed's right shoulder is associated with her work-related injury which occurred on [December] 16, 2015.
Although Dr. Reynolds agreed with Dr. Ahmadi's proposed surgical treatment, as it was the standard of care for calcific tendinitis unresponsive to nonoperative management, he opined that the MRI findings were more consistent with chronic findings and not consistent with a single, traumatic injury. He returned Reed to full duty, concluded Reed had reached maximum medical improvement as of October 12, 2016, and assigned her a 0 percent permanent-impairment rating of the right shoulder and of the whole person. Dr. Reynolds reiterated this opinion in a follow-up letter dated November 27.
In both a letter and a deposition, Dr. Ahmadi vacillated between whether Reed's shoulder pathology was chronic in nature or caused by an acute injury; he said it could be either one. He stated that calcification of the tendon could be acute, it could be chronic, or it could be both. Dr. Ahmadi disagreed with Dr. Reynolds that the calcification of the tendon was inconsistent with a single traumatic episode; however, he stated that he honestly did not think anyone could say for sure whether the calcification was related to the trauma. When pressed by Reed's attorney, Dr. Ahmadi stated he could not say with 100 percent certainty the calcification was due to the fall, but his opinion was that the cause of Reed's need for surgery was more than 50 percent likely due to trauma.
Reed's third alleged injury occurred on July 17, 2017, while she was placing charts into a box on top of a filing cabinet. When the box began to slide off the top of the cabinet, she caught the box and was trying to push it back on the filing cabinet when she felt pain in her right shoulder and down her right arm.
Reed was seen on the same day by ANP Jennifer Scott. In her examination, Scott did not note any swelling, bruising, or wound of Reed's right shoulder; she did, however, note a palpable spasm to the right trapezius region. Scott further noted limited range of motion due to pain and a positive Hawkins test. She diagnosed Reed with "pain in right shoulder" and "other muscle spasm" and prescribed her Zanaflex three times a day as needed for spasms. Scott believed the cause of Reed's problems was work related. She placed Reed on restricted duty and also requested an MRI of Reed's right shoulder. Reed was seen for a follow-up visit with Dr. Larey on July 25. He noted Reed's continued right-shoulder pain with limited range of motion. The diagnosis was again right-shoulder pain and other muscle spasm, although there was no spasm noted in the examination notes.
The MRI requested by ANP Scott was performed on July 28, 2017. The impression from that MRI stated, "Calcification in the distal supraspinatus tendon is again seen consistent with tendinosis changes. There is a little more thickening and slight increased signal in the more proximal tendon and findings could be slightly more prominent there. Mild impingement secondary to hypertrophic changes in the acromioclavicular joint."
ANP Scott reviewed the MRI results with Reed in a follow-up visit on August 7. She referred Reed for physical therapy for right-shoulder pain and placed her on restricted duty. ANP Scott saw Reed again on September 1 and continued Reed on restricted duty.
Dr. Steven Nokes reviewed both MRIs of Reed's right shoulder, and it was his opinion that the MRIs demonstrated "moderate AC joint hypertrophic changes with mild compression of the supraspinatus musculotendinous junction along with moderate chronic calcific tendinosis of the supraspinatus and infraspinatus tendons, without a cuff tear." He further opined these findings were all degenerative in nature.
Following a hearing on Reed's claims for workers'-compensation benefits, the ALJ found Reed had sustained a compensable soft-tissue injury to her cervical spine on August 25, 2015. The ALJ also found that she had received appropriate medical benefits for this injury and that the injury had resolved no later than December 17, 2015. The ALJ denied benefits for Reed's remaining alleged injuries, finding she failed to prove by a preponderance of the evidence that she sustained compensable injuries. The Commission affirmed and adopted the ALJ's opinion.
II. Standard of Review
In appeals involving workers'-compensation claims, this court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Webb v. Wal-Mart Assoc., Inc. , 2018 Ark. App. 627, 567 S.W.3d 86. Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Tyson Foods, Inc. v. Turcios , 2015 Ark. App. 647, 476 S.W.3d 177. The issue on review is not whether the appellate court might have reached a different result; we affirm if reasonable minds could reach the Commission's conclusion. Ark. Highway & Transp. Dep't v. Wiggins , 2016 Ark. App. 364, 499 S.W.3d 229. When the Commission denies a claim due to the claimant's failure to meet his or her burden of proof, the substantial-evidence standard of review requires this court to affirm the Commission's decision if the opinion displays a substantial basis for the denial of relief. Webb , supra . We defer to the Commission on issues involving credibility and the weight of the evidence. Frost v. City of Rogers , 2016 Ark. App. 273, 492 S.W.3d 875. It is also the Commission's duty to resolve conflicts in medical testimony and evidence. Wiggins , supra .
To prove the occurrence of a specific-incident compensable injury, the claimant must establish that (1) an injury occurred arising out of and in the scope of employment; (2) the injury caused internal or external harm to the body that required medical services or resulted in disability or death; and (3) the injury was caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012). A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). "Objective findings" are those findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Complaints of pain are not to be considered objective medical findings. Ark. Code Ann. § 11-9-102(16)(A)(ii)(a) . The burden of proving a specific-incident compensable injury is the employee's and must be proved by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i).
III. Cervical Spine and Left Shoulder-August 25, 2015
Reed claims she suffered an injury to both her cervical spine and her left shoulder as a result of the August 25, 2015 incident. Regarding her cervical-spine injury, the Commission found that Reed suffered a compensable soft-tissue injury, shown by objective medical findings in the form of spasms and that the injury had resolved no later than December 17, 2015 (the day after the second injury). Reed does not challenge this decision on appeal.
Regarding her left shoulder, the Commission found Reed had failed to prove her left-shoulder issues were causally connected to the August 25 incident. Specifically, the Commission found,
Regarding the claimant's alleged left shoulder injury of August 25, 2015, the claimant has again failed to satisfy the objective medical findings requirement. Hence, the record does not contain any medical evidence supported by objective findings that the claimant sustained a trauma injury to her left shoulder. The EMG performed on November 25, 2015 by Dr. Hardy did not demonstrate any abnormalities of the upper left extremity. An MRI on the left shoulder was performed on January 14, 2016, which revealed only degenerative changes, which would have pre-existed the August 25, 2015 event. Hence, the claimant has failed to establish a causal connection between these abnormalities identified in the MRI and her work incident of August 25, 2015. While I recognize that the claimant was prescribed Flexeril and Voltaren, there is insufficient evidence to support a finding that the Flexeril and Voltaren, or any of the medications, were prescribed for a specific objective medical finding. The prescription alone is not enough to constitute an objective finding.
Reed argues that by initially accepting the August 25, 2015 injury as compensable, and then denying additional care for her left-shoulder injury due to a lack of objective medical evidence, she was essentially being required to produce objective medical evidence that she remained in her healing period. We disagree. Although initially accepted as compensable, First Step ultimately controverted Reed's August 2015 injury in its entirety. It was Reed's burden to prove by a preponderance of the evidence she suffered a compensable specific-incident injury, see Ark. Code Ann. § 11-9-102(4)(E)(i), which included proof of objective medical findings of an injury and a causal connection between the injury and the incident.
There were no objective medical findings from the tests performed on Reed's left shoulder that would indicate she suffered a specific-incident injury on August 25, 2015. Reed's EMG of her left shoulder was within normal limits, and although the MRI of her left shoulder revealed objective medical findings of degenerative changes, the Commission found no causal connection between the degenerative changes and the August 2015 incident. There is substantial evidence to support the Commission's decision that Reed failed to prove her left-shoulder problems were causally connected to the August 25, 2015 incident because as they were degenerative in nature. Accordingly, we affirm on this issue.
IV. Cervical, Thoracic, and Lumbar Spine-December 16, 2015
Reed argues that the Commission erred in finding there were no objective findings of injuries to her cervical, thoracic, and lumbar spine as a result of the December 16, 2015 incident. We reject Reed's contention and affirm on this point because there is substantial evidence to support the Commission's finding.
Dr. Larey saw Reed on the date of the injury. He found her to be tender in her lumbar, thoracic, and cervical-spine areas, with a decreased range of motion in her cervical spine; however, on examination, Dr. Larey was "really unable to appreciate any specific muscular spasms." Again on January 18, 2016, Dr. Larey noted no spasms in the cervical, thoracic, or lumbar spine. When asked at the hearing about objective medical findings for these injuries, Reed's counsel noted she had pain and was diffusely tender. But pain is not an objective finding. Ark. Code Ann. § 11-9-102(16)(A)(ii).
On appeal, Reed argues that objective medical findings were documented in a physical-therapy note from February 19, 2016, which stated under the heading of diagnosis, "Right shoulder strain, lumbar strain with radiating right hip pain, spasms." We are not persuaded that the notation in the physical-therapy note constitutes sufficient evidence of objective medical findings because Dr. Larey found no evidence of spasms on the day of the injury or on the follow-up visit approximately one month later. By comparison, the physical-therapy notation was made two months after the incident, and it did not indicate where the spasms were located. Substantial evidence supports the Commission's decision, and we affirm on this issue.
V. Right Shoulder-December 2015 and July 2017 Incidents
Reed's alleged right-shoulder injuries from the December 2015 and July 2017 incidents were addressed together in the Commission's opinion:
Here, the claimant underwent two MRIs (on August 23, 2016 and July 28, 2017) of the right shoulder. Dr. Reynolds (with respect to the first MRI of August 23, 2016), Dr. Nokes, and Dr. Ahmadi have all opined that the findings on these MRIs are degenerative in nature. Under these circumstances, I find that the claimant failed to provide medical evidence supported by measurable objective findings establishing a specific incident injury to her right shoulder. The record does not contain any medical evidence supported by objective findings that the claimant sustained a trauma injury to her right shoulder. None of the medications of record, including the Flexeril and Voltaren, were prescribed for "muscle spasm, swelling or bruising" or any other objective findings relating to the claimant's right shoulder.
Regarding her December 2015 right-shoulder injury, Reed argues the Commission erred when stating there were no objective findings of an acute injury from either incident. Reed also contends the positive findings on the Neer and Hawkins impingement tests conducted by Dr. Reynolds in his independent medical examination constitute objective medical findings. While the MRI indicated evidence of degenerative changes, we need not determine whether the Neer and Hawkins impingement tests constitute objective medical findings because the Commission found Reed's right-shoulder issues were not causally connected to the December 2015 incident.
Reed asserts that Dr. Ahmadi's deposition provides the causal connection between her right-shoulder issues and her work-related injury. Dr. Ahmadi's opinion as to the cause of the calcification of the tendon and the need for surgery to remove the calcium and repair the rotator-cuff tendon was equivocal at best. He stated that degenerative changes like the ones seen in Reed's right shoulder could occur either gradually over time or after an injury. He further stated one could not tell what caused the calcification; the changes could be chronic or a result of an acute injury. He finally stated that he believed it to be more likely from a fall, but he could not say with 100 percent certainty.
Both Dr. Reynolds and Dr. Nokes clearly opined that Reed's right-shoulder problems were degenerative, while Dr. Ahmadi stated Reed's issues could either be degenerative or caused by an injury. The Commission has the duty to resolve conflicts in medical testimony and evidence. Wiggins , supra . The Commission was not required to believe Dr. Ahmadi's opinion that Reed's issues were more likely to have been caused by an acute injury, especially considering the fact that both Dr. Reynolds and Dr. Nokes believed Reed's problems to be degenerative in nature, not caused by an acute injury. There is substantial evidence from the opinions of Dr. Reynolds and Dr. Nokes to support the Commission's finding that Reed's right-shoulder issues were not causally connected to her December 2015 incident; we therefore affirm the Commission's denial of benefits with respect to the December 2015 injury.
Reed also challenges the Commission's finding that there were no objective medical findings with respect to her July 2017 right-shoulder injury. We agree there is not substantial evidence to support the Commission's finding on this issue.
On July 17, 2017, the date of the alleged third injury, Reed was seen by ANP Jennifer Scott. Although no swelling, bruising, or wound was noted, Scott's clinic note stated, "Palpable spasm noted to right trapezius region. Limited ROM due to pain. No crepitance with PROM. Hawkins sign + Empty cart test +." Scott diagnosed Reed with "pain in the right shoulder and other muscle spasm " and prescribed Zanaflex one to three times daily "as needed for spasm ." (Emphasis added.) Muscle spasms constitute objective medical findings. Walls Farms, LLC v. Hulsey , 2017 Ark. App. 624, 534 S.W.3d 771. Therefore, the Commission's finding that the record lacked evidence of objective medical findings of a trauma injury is not supported by substantial evidence, as spasms were clearly noted from the date of the injury.
However, our analysis does not end there. There were no findings made by the Commission regarding a causal connection between the muscle spasm and the July 17, 2017 incident. While First Step asserts that the spasm was indicative of a soft-tissue injury that has since healed, the Commission made no finding to that effect. The Commission has the duty to make factual findings and conclusions "with sufficient detail and particularity to allow us to decide whether its decision is in accordance with the law." Parker v. Advanced Portable X-Ray, LLC , 2014 Ark. App. 11, at 5, 431 S.W.3d 374, 379. This court does not review Commission decisions de novo on the record, nor do we make findings of fact the Commission should have made but did not. Stallworth v. Hayes Mech., Inc. , 2013 Ark. App. 188, 2013 WL 1010392. If the Commission fails to make specific findings of fact on an issue, it is appropriate for this court to reverse and remand the case for such findings to be made by the Commission. Id. Because the Commission failed to make any causal-connection findings in connection with the July 17, 2017 injury, we reverse and remand for it to do so.
Affirmed in part; reversed and remanded in part.
Gladwin and Hixson, JJ., agree.
Arkansas law permits the Commission to adopt the ALJ's opinion as its own. Ark. Highway & Transp. Dep't v. Work , 2018 Ark. App. 600, 565 S.W.3d 138. If the Commission adopts the ALJ's opinion, the ALJ's findings of fact and conclusions of law are made the Commission's findings of fact and conclusions of law, and this court considers both the ALJ's opinion and the Commission's majority opinion on appellate review. Univ. of Ark. at Pine Bluff v. Hopkins , 2018 Ark. App. 578, 561 S.W.3d 781.
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WAYMOND M. BROWN, Judge
Appellant O'Tear Graves was convicted of first-degree domestic battery in the March 18, 2017 shooting of Alvertis Murry. She was sentenced to five years' imprisonment with an additional consecutive five-year sentence for use of a firearm. Appellant argues on appeal that the court erred in denying her motion to dismiss the charge because the State failed to introduce substantial evidence that when appellant shot Murry, she did not have a reasonable apprehension that she was in danger of great bodily harm at the hands of Murry. We affirm.
On March 18, 2017, Murry was driving down Allen Street in North Little Rock looking for his cousin, Cory Robinson, who happened to be homeless at the time. He subsequently came in contact with appellant, his ex-girlfriend, and was involved in both a verbal and physical altercation with her. The altercation ended when appellant shot Murry. She was charged with first-degree domestic battery, and the State included an enhancement for using a firearm. Appellant waived her right to a jury trial, and her bench trial took place on May 29, 2018.
Christina Martin, appellant's aunt, testified that appellant called her on March 18, 2017, asking if she was home because appellant was "going to pull up." Martin stated that she was inside her car eating when appellant pulled up but that she suddenly heard a commotion. She said that when appellant made it to the back of appellant's truck, Murry was in her face. She stated that they started cursing at each other and that she and appellant asked Murry to leave Martin's yard. Martin testified that Murry got in appellant's face and "mugged" her in the face. Martin stated that appellant "mugged" Murry back and that when Murry went to push appellant again in the face, appellant "came up with the gun and shot him." Murry then told appellant that she had "caught [her] a charge" and left. Martin said that she did not know what the altercation between appellant and Murry was about.
Murry testified that as he passed by Martin's residence, something hit his vehicle. He stopped to see what it was and saw appellant standing there cursing at him. He began to curse back at appellant, and they had a verbal altercation. They subsequently came face to face with each other, and the altercation became physical. Murry testified that appellant then reached into her purse, pulled out a gun, and cocked it. He stated that he told appellant that since she pulled her gun on him, she was going to have to shoot him. He said that he told appellant that if she did not shoot him, then she was "pussy with it." He stated that appellant put her finger in his face and pushed him in the face. He testified that he told appellant he would "beat [her] ass" if she put the gun down. However, he denied ever touching appellant. He stated that appellant backed up and pointed the gun toward his side and shot him. He said that Martin then responded, "O'Tear, you shot that boy." Murry testified that he walked to his vehicle and drove to the hospital. He stated that the bullet went straight through and that the hospital performed a CAT scan then cleaned and patched the wound. Murry admitted that he has a criminal history dating back to 1991, including first-degree battery, second-degree battery, and aggravated assault. He insisted that he never got physical with appellant that day.
On cross-examination, Murry stated that in 2009, he pled nolo contendere to second-degree battery charges on a North Little Rock police officer. He said that when appellant found out about the altercation, she called police and said that he shot at her. He denied having a long history of following appellant around. He said that even though there was a 2010 no-contact order against him, he and appellant had slept with each other on and off and were last intimate with each other two weeks before the shooting.
Officer Rathey of the North Little Rock Police Department testified that he had contact with appellant on March 18, 2017, after he responded to a person-shot call. He stated that appellant informed him that she had been in a verbal and physical altercation with Murry and that Murry "began to put his hands on her chest and she feared for her life, and therefore, she pulled a handgun out and ... shot him." He said that Murry was not at the scene but that he talked to other witnesses present. He testified that he arrested appellant for first-degree battery after completing his investigation.
On cross, Rathey stated that there was pushing and shoving both ways and that appellant pulled a gun and shot Murry. He admitted that at the time of the shooting, appellant had a valid concealed handgun license and that if a person "is in fear [for] their personal safety or their life, that is the purpose of having a concealed permit."
Appellant unsuccessfully moved for a directed verdict at the conclusion of the State's case on the basis that Murry was not her family or household member. Appellant testified that her relationship with Murry ended in 2009 or 2010 when he shot at her while her son was standing in the door. She testified that she had filed several complaints against Murry and had even tried contacting his parole officer. She stated that she was constantly harassed by Murry and that her kids were fearful of him. She said that when she went to her aunt's house on March 18, she could not tell if she was being followed. She testified that after she parked and got out of her truck, Murry rushed her and started "calling [her] out by name, disrespecting [her]." She stated that Murry "smushed" her in her face and that she kept telling him to leave her alone but that he kept harassing and bothering her. She said that she "smushed" Murry back in the face and continued to beg him to "quit, to stop, and he wouldn't. He wouldn't." She further testified,
I become [sic] very afraid, because he kept on and he kept walking towards me, and all I kept asking and begging for him to do, was leave me alone. Leave me alone. Just leave me alone, Alvertis, just leave me alone and he wouldn't. He wouldn't leave me alone. And he [drew] back to hit me and that is when I shot him. That is when I shot him.
(Inaudible) but he was going to hurt me. He was going to hurt me.
She denied having a sexual relationship with Murry and stated that he was a "stalker." She submitted a police report filed against Murry on September 16, 2016, into evidence.
Appellant testified on cross-examination that she had filed several reports with the NLRPD against Murry for harassment and stalking and that she had gone to the prosecuting attorney's office several times. However, she stated that nothing had been done about Murry's actions. She said that Murry had harassed her over the past eight years and that she filed reports each time. She stated she did not know what the NLRPD did with eight years' worth of police reports. She testified that Murry has harassed her since she shot him and that the last police report she filed against him was on December 28, 2017. She admitted that she did not get an order of protection against Murry, but she said that was because Murry had one against her. She said that the day she shot Murry, he "had come over there [and] was disrespecting [her] in [her] auntie's yard, putting his hands on [her]." She stated that Murry was disrespecting her "in front of everybody. It was a gang of people out there. And I shot him. And then I shot him after he put his hands on me. I put my hand on him after he put his hands on me. He proceeded to draw back and hit me again, and that is when I shot him, as I stated." She testified that Murry was in the process of hitting her in her face with his fist when she shot him. She acknowledged that she did not live with Martin and that she did not try to leave. However, she stated that she tried to walk away and that she kept telling Murry to leave.
On redirect, appellant stated that she was afraid for her life. She said that Murry had taken shots at her before. She testified that although a lot of people were present when the shooting took place, "people don't want to be involved in nothing like this."
Appellant renewed her motion for directed verdict at the conclusion of the evidence, contending that she acted in self-defense. The court found that she had every opportunity to withdraw but did not and thus did not have a "valid self-defense plan." Appellant was found guilty and sentenced to an aggregate term of ten years' imprisonment. The sentencing order was filed on June 11, 2018. Appellant filed a timely notice of appeal on June 22, 2018. This appeal followed.
Appellant argues that the court should have dismissed her charge for first-degree domestic battery because the State failed to introduce substantial evidence that when she shot Murry, she did not have a reasonable apprehension that she was in danger of great bodily harm at the hands of Murry. A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is committing or about to commit a felony involving force or violence. A person may not use deadly force in self-defense if the person knows he or she can avoid the necessity of using deadly force by retreating. However, a person is not required to retreat if the person is unable to retreat with complete safety; if the person is in the person's dwelling and was not the original aggressor; or if the person is a law enforcement officer or a person assisting at the direction of a law enforcement officer. Justification becomes a defense when any evidence tending to support its existence is offered; once raised, it becomes an element that must be disproved by the State beyond a reasonable doubt. Whether one is justified is largely a matter of the defendant's intent and is generally a question of fact. A person is justified if she can show the victim was the aggressor and the accused used all reasonable means within her power and consistent with her safety to avoid the use of deadly force; critical to this inquiry is the reasonableness of the accused's apprehension that she was in danger of death or great bodily harm, as well as whether the accused used all reasonable means consistent with personal safety to avoid the use of deadly force. The fact-finder is free to accept or reject any part of a witness's testimony, and credibility and the weight to give any evidence are issues left solely to the fact-finder.
Here, the court found that appellant did not retreat although she had every opportunity to do so. Appellant's argument focuses on her belief that she was in danger of great bodily harm, but it disregards the requirement that she attempt to retreat if she is not at her own residence and can do so safely. It is this requirement that the court found appellant was unable to satisfy in her defense of justification. We cannot say that this finding was in error. Accordingly, we affirm.
Affirmed.
Virden and Murphy, JJ., agree.
Martin explained that "mugged" means Murry pushed appellant in her face.
An amended sentencing order was filed on June 25, 2018, filling in portions of the order that had not been filled in on the original order. However, it did not change the overall disposition or sentence appellant received in the original order.
Ark. Code Ann. § 5-2-607 (a)(1) (Repl. 2013).
Ark. Code Ann. § 5-2-607 (b)(1).
Ark. Code Ann. § 5-2-607(b)(1)(B)(i)-(ii).
Green v. State , 2011 Ark. App. 700.
Id.
Id.
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BRANDON J. HARRISON, Judge
Jerrod Craven appeals his convictions on two counts of aggravated robbery and one count of theft of property, arguing that the circuit court erred in (1) denying his motion for directed verdict, (2) limiting the defense's cross-examination of Jalen Hudson, and (3) finding that Hudson's interview with the prosecutor was not a statement. We affirm.
In a felony information filed 27 March 2017, Craven was charged with committing two counts of aggravated robbery and one count of theft of property on 30 November 2016. The information was amended in June 2017 to add Jalen Hudson as a codefendant.
In April 2017 and again in August 2017, Craven moved for discovery, specifically any written or recorded statements made by any codefendant or other State witness. Immediately prior to the jury trial on 19 June 2018, the circuit court convened a hearing on those motions and other preliminary matters. The State explained that Hudson had agreed to testify and admit that he previously lied to police officers about a third person who was involved in the November 30 robbery. The State voiced concern that defense counsel would attempt to bring up other aggravated-robbery charges against Hudson in Ashley County, and it asked that Hudson's cross-examination be limited in scope. The defense responded that it had a right to impeach the witness with prior lies, but the State asserted that if the witness takes the stand and admits he lied, then he cannot be impeached.
The State also said it had recently become aware that Hudson had an additional warrant for aggravated robbery out of Little Rock but that the warrant had not yet been served. So, the State asserted, Hudson would "be required to take the Fifth Amendment through discussions with his attorney and so those questions and the facts have no relevance because he cannot answer them." The defense objected and argued that "Hudson discussed this very case that he's not been served on with Detective Bryant and Detective Oberle when they initially took his statement," and "the case where he's not been served on is a critical part of the basis for the affidavits for search warrant on not only Mr. Craven's case but Mr. Hudson's other case which he's pled guilty to." The defense contended that it had a constitutional right to impeach the credibility of the State's key witness. The State responded that Hudson was taking the Fifth regarding a separate case, not the case currently on trial. The State explained that Hudson was charged with committing two aggravated robberies on December 11; one charge to which he had already pled guilty (the Sherwood robbery), and one charge for which he had not yet been served with a warrant (the Little Rock robbery). The aggravated robbery in the current case occcured on November 30 in Jacksonville, and Hudson had relevant testimony about that robbery.
The court ruled that the defense could not "talk about the case in which there's a warrant. There will be no mention of a warrant. That's not relevant to this case." Defense counsel continued to argue that Hudson had lied to police about the December 11 incident during its investigation of the November 30 incident, so it was relevant. The court reiterated, "The warrant and anything related to it, you can't talk about it."
At trial, the State presented the following testimony. Rachel Hale, the assistant manager at the Dollar General on Military Road in Jacksonville, testified that on 30 November 2016, she and a coworker were preparing to close the store when she heard a voice say "[l]eave the money there and give me all your money." Hale looked up from the register and saw a man with a gun in his hand. Another man approached her with a backpack and directed her to put the money in the bag. After retrieving money from the other registers and the safe, Hale and her coworker were directed into the restroom. As soon as the restroom door closed, Hale used her cell phone to call 911. Hale said that one of the men was wearing a dark hoodie, dark pants, dark gloves, and a handkerchief covering his face. The other man was wearing blue jeans with an emblem on the pockets and brown gloves. She confirmed that the Dollar General had a video-surveillance system. On cross-examination, she said she could not identify either man. Christina Waltman, the other Dollar General employee that was present on November 30, provided testimony similar to Hale's. She said that one man was wearing a black hoodie and the other man was wearing a gray hoodie; the man with the gray hoodie had the gun, and the man with the black hoodie had the backpack. She also confirmed that she could not identify either man.
Investigator Mike Bryant, an employee of the Pulaski County Sheriff's Office, testified that he had investigated the aggravated robbery that occurred on November 30. Bryant obtained surveillance footage from the store and described the actions on the video while it was played for the jury. The footage showed the man in the gray hoodie speaking on a cell phone while walking around the store.
Before the State called Jalen Hudson as a witness, the attorneys and the court had another discussion about the scope of Hudson's testimony. The court reiterated, "You-all can ask him any questions you want to about whatever it is that's relevant. Then you can ask him about the warrant, but you cannot ask about any specifics behind the warrant." Defense counsel continued to argue that he should be allowed, under Ark. R. Evid. 608(b), to inquire about additional instances of untruthfulness committed by Hudson to show his bias and motive. The court ruled that defense counsel could not "ask successive questions about the different instances because they wouldn't be relevant in this matter."
Hudson testified that he knew Craven and that they had attended Arkansas Tech together. Hudson said that he participated in the aggravated robbery of Dollar General on November 30 with Craven and Stacy Cox. While Craven and Cox went into the store, Hudson drove around and talked on the phone with Craven. Hudson identified Cox as the man wearing the gray hoodie and Craven as the man wearing the black hoodie. He confirmed there was a gun used in the robbery.
Hudson also confirmed that he had a prior conviction for conspiracy to commit aggravated robbery in Ashley County and had pled guilty to two counts of aggravated robbery; one count pertaining to the November 30 robbery and another that occurred on December 11. Hudson's plea agreement required that he give truthful testimony at Craven's trial. Hudson also acknowledged a recent warrant for his arrest issued in Little Rock but said that his negotiated plea did not include that case. He admitted that he had lied in a statement given to Officer Bryant and told him that it was Joseph Aikens, not Stacy Cox, who was the third participant in the November 30 robbery. Hudson said he and Cox were close and that he was trying to protect Cox. Hudson had also lied and said that Craven was involved in the December 11 robbery, when in fact only he and Cox were involved.
On cross-examination, Hudson confirmed that the November 30 robbery occurred in Jacksonville, and the December 11 robbery occurred in Sherwood. He again said he was aware of the Little Rock warrant but that he was asserting his Fifth Amendment right not to incriminate himself. Based on an email he had received from the prosecutor regarding Hudson's expected testimony, defense counsel proceeded to question Hudson about a statement he gave to the prosecutor around June 8, which led to the following colloquy.
PROSECUTOR : I mean, at this point he's using hearsay without the ability to cross-examine me. I was just giving him a general understanding of the facts and I was writing down facts as I was talking. I'm not sure what was right and what was wrong. It was just a general idea of what was being said.
THE COURT : So this is a statement he gave to you.
PROSECUTOR : It's not necessarily the statement. It's my summary of my understanding at the time.
THE COURT : So you weren't sitting in a room taking that down.
PROSECUTOR : No, no. This was-this was at least hours, if not the next day. I mean, I think he can ask him what's true and what's not true. But not in reference to that statement. That was just to give him an idea of the witness testimony.
DEFENSE : This is another statement given in this case.
THE COURT : This is not a statement.
PROSECUTOR : I could be wrong, yeah.
DEFENSE : It's his recollection of the statement. It was given to him directly.
THE COURT : That's just his notes. Is that what it is?
PROSECUTOR : Yes.
THE COURT : Your notes?
PROSECUTOR : Yes. And we give it to the defense attorney so that he's aware of it. It wasn't meant to be impeached.
THE COURT : It's not a statement.
DEFENSE : Okay. Note my objection, Your Honor.
THE COURT : Yes, sir.
Hudson acknowledged that he had agreed that in exchange for his truthful testimony, he would receive a sentence of twelve years' imprisonment on the two aggravated-robbery charges from November 30 and December 11, and twenty years' imprisonment in the Ashley County robbery, all to run concurrently.
After Hudson's testimony concluded and the jury was dismissed for the day, defense counsel made the following proffer:
I had previously objected to the motion in limine wherein the court had cautioned me and directed me not to inquire as to [an] armed robbery, aggravated robbery, occurring at Springer Boulevard in Little Rock, Arkansas, on December the 11th of 2017. I had what I would describe as impeachment evidence to specifically inquire as to Jalen Hudson's involvement in said robbery. I think it was critical to the Defense that I be allowed to inquire of that robbery, (A), because evidence and facts concerning the Springer Boulevard robbery are referenced in several search warrants in the prosecution's case file. Additionally, Detective Oberle, following his interview on January the 13th of Jalen Hudson, and this is all discussing Jalen Hudson's testimony, specifically had Mr. Hudson inquire as to why he had a hold out of Little Rock. ... Detective Oberle stated that a Little Rock detective would be down to discuss his involvement in that robbery. Mr. Hudson said he would like to speak to them because he wanted to, I believe, clear his name.
What we now know and what this trial will later reveal is that not only did he actually participate in the robbery on Springer Boulevard on December the 11th, but another unnamed defendant, Stacy Cox, will be implicated in said robbery.
I have cited to the court in reliance on my argument 608(b) which indicates that if impeachment merely involves credibility, collateral issues may not be discussed. However, if it involves bias, interest or motive you can inquire.
I rely on Goshen versus State , 84 Ark.App. 387, 141 S.W.3d 907 (2004) case, for the proposition that the prohibited cross-examination goes directly to motive and bias on the part of Jalen Hudson. Additionally, rely on Simpson versus State , 274 Ark. 188, 623 S.W. 2nd 200 (1981), ... [and] the Fifth and Sixth amendment to the Arkansas and Federal Constitution wherein I have a right to fully cross-examine any witness which will benefit the Defense in the case at bar.
On the second day of trial, Officer Bryant was re-called to the stand and testified that he interviewed Hudson on 13 January 2017. After that interview, Bryant obtained a warrant for Craven's cell phone records and later interviewed Craven on February 16. Bryant said that based on the GPS coordinates associated with the cell phone records, he determined that a phone call from Craven to Hudson occurred in Jacksonville on November 30 at approximately 10:38 p.m. During Bryant's interview with Craven, Bryant asked Craven where he was on the night of November 30, and Craven said that he was either on his way back from Austin, Texas, or in Russellville. Craven confirmed he had his cell phone with him on November 30. When confronted with the cell phone records contradicting his account, Craven told Bryant that he had forgotten to tell him (Bryant) that his phone had been stolen. Craven denied any involvement in a robbery.
Dan Reller, a compliance-security analyst with AT & T, verified that a cell phone call between Craven and Hudson occurred on the night of November 30 and that the call lasted approximately twenty-two minutes.
After the State rested, the defense moved for a directed verdict, arguing that the State had not met its burden of proof.
They have put on testimony of a now confirmed liar through the testimony of Jalen Hudson. I believe he has no credibility.
They put on phone records and they have been tremendous. But at this point they cannot put that phone in the hands of Jerrod Craven during the commission of this robbery, period. Lacking that-those two-or that one piece of evidence, I think the State has not met its burden.
The defense also renewed its objection to the limitation placed on Hudson's cross-examination. The motion was denied, and the defense rested without calling additional witnesses. The case was sent to the jury, which found Craven guilty on all counts and found that he had employed a firearm in the commission of the offenses. Craven was sentenced to a total of thirty-one years' imprisonment. He now appeals his convictions.
I. Sufficiency of the Evidence
Although Craven presents his challenge to the circuit court's denial of his motion for directed verdict as his third point on appeal, we must address that challenge first for purposes of double jeopardy. See Woolbright v. State , 357 Ark. 63, 160 S.W.3d 315 (2004). This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Gwathney v. State , 2009 Ark. 544, 381 S.W.3d 744. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, consider only the evidence that supports the verdict, and affirm if substantial evidence exists to support the verdict. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Campbell v. State , 2009 Ark. 540, 354 S.W.3d 41. Circumstantial evidence may constitute substantial evidence to support a conviction; to be substantial, circumstantial evidence must exclude every other reasonable hypothesis than the guilt of the accused, and that determination is a question of fact for the trier of fact. Holland v. State , 2017 Ark. App. 49, 510 S.W.3d 311. Weighing the evidence, reconciling conflicts in the testimony, and assessing credibility are all matters exclusively for the trier of fact, in this case the jury. Id. The jury may accept or reject any part of a witness's testimony, and its conclusion regarding credibility is binding on the appellate court. Id.
On appeal, Craven argues that the only evidence that placed him at the scene of the robbery was Hudson's testimony and the cell phone records. But Craven had told police that he was out of town at the time of the robbery and that his cell phone had been stolen. Thus, the State needed to provide more evidence to support his conviction. The State counters that the jury was free to disregard Craven's claims and to resolve the issue of Hudson's credibility in favor of the State. It contends that viewed in the light most favorable to the State, substantial evidence supports Craven's guilt. We agree. Given our standard of review, we hold that there was enough evidence to compel the jury to a conclusion one way or the other without resorting to speculation or conjecture.
II. Cross-Examination
Evidentiary rulings are a matter of discretion and are reviewed only for abuse of that discretion. Gilcrease v. State , 2009 Ark. 298, 318 S.W.3d 70. Abuse of discretion is a high threshold that requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Hajek-McClure v. State , 2014 Ark. App. 690, 450 S.W.3d 259. While an accused is accorded wide latitude in cross-examination to impeach the credibility of a witness against him, the circuit court may also impose reasonable limits on what testimony is admitted based on concerns about harassment, prejudice, waste of time, or interrogation that is repetitive or only marginally relevant. Gilcrease, supra.
Craven argues that Hudson was a "biased witness who had both a troubling history of committing armed robberies as well as questionable motives and biases for testifying" against him. He contends that Hudson discussed details of the November 30 robbery when he was arrested and charged with the December 11 Little Rock robbery. But because he was not allowed to question Hudson about that robbery or his interview with police when he was arrested for that robbery, Craven claims he was "prohibited from eliciting testimony from Mr. Hudson as to the issues of bias, interest, and motive."
The State counters that the circuit court properly limited the use of evidence of Hudson's other crimes to challenge his credibility or show bias. Hudson admitted to his convictions for other crimes, his participation in the November 30 robbery, and his false statements given to authorities on more than one occasion. He also testified about his plea agreement. And contrary to Craven's assertion, Hudson's participation in the Little Rock robbery did not implicate his truthfulness and could not be used to impeach his credibility. See Maiden v. State , 2014 Ark. 294, 438 S.W.3d 263 (supreme court has interpreted Rule 608 to permit inquiries on cross-examination into conduct that is clearly probative of truthfulness or untruthfulness but to disallow cross-examination into specific instances that are merely probative of dishonesty). Thus, the State argues, Craven was not denied the opportunity to challenge Hudson's veracity or credibility in front of the jury.
We hold that Craven has failed to demonstrate how details of Hudson's involvement in the Little Rock robbery show bias on Hudson's part in this case. The types of cases in which appellate courts have found that cross-examination should have been allowed because the matters reflected on the witness's interest, motives, and bias include the following: Henderson v. State , 322 Ark. 402, 910 S.W.2d 656 (1995) (evidence of witness tampering is evidence of bias and consciousness of guilt and is thus admissible); Wood v. White , 311 Ark. 168, 842 S.W.2d 24 (1992) (hostility of a witness against a party admissible to show bias); Goodwin v. State , 263 Ark. 856, 568 S.W.2d 3 (1978) (officer's threat to make sure that the defendant went to prison if he did not become an informant relevant to the issue of bias and thus admissible); Morris v. State , 21 Ark. App. 228, 731 S.W.2d 230 (1987) (defendant's attempt to have a witness change her testimony admissible under Rule 404(b)); Tubbs v. State , 19 Ark. App. 306, 720 S.W.2d 331 (1986) (witness's offer of money to another witness to get the witness to change testimony admissible as evidence of bias); Hackett v. State , 2 Ark. App. 228, 619 S.W.2d 687 (1981) (threatening a witness in an effort to keep the witness from testifying against the defendant admissible on the issue of bias).
In this case, Craven has failed to articulate, either below or to this court, how Hudson was biased against him, and specifically how Hudson's statement to the police about the December 11 Little Rock robbery contained evidence of bias. Below, defense counsel argued that he could "unequivocally" show that Hudson lied in that statement, but that is not the same as demonstrating bias. In the words of the circuit court, defense counsel wanted Hudson to say, "Yes, I lied about that. Yes, I lied about that too. Yes, I lied about that third thing too." But our supreme court recognized in Kennedy v. State , 344 Ark. 433, 42 S.W.3d 407 (2001), that once a witness acknowledges having made a prior inconsistent statement, the witness's credibility has successfully been impeached. In other words, "[a]n admitted liar need not be proved to be one." Id. at 445, 42 S.W.3d at 414 (quoting Ford v. State , 296 Ark. 8, 18, 753 S.W.2d 258, 263 (1988) ). Thus, we hold that the circuit court did not abuse its discretion in limiting Craven's cross-examination of Hudson.
III. Hudson's Statement to the Prosecutor
As explained above, during Craven's cross-examination of Hudson, defense counsel utilized an email sent to him by the prosecutor; this email contained a summary of the testimony that Hudson was expected to provide. The State objected to Craven's use of this email, and defense counsel appeared to argue that the email constituted a statement by Hudson. The court disagreed, and the trial continued, with defense counsel stating, "Note my objection, Your Honor."
Now, on appeal, Craven argues that the circuit court "erred on his understanding of the nature of a 'statement' by a codefendant" and that the State failed to provide him the "substance" of Hudson's oral statement to the prosecutor. Craven cites Ark. R. Crim. P. 17.1(a)(ii) (2018), which requires the prosecuting attorney to disclose, upon request, any written or recorded statements and the substance of any oral statements made by the defendant or a codefendant. Craven interprets the circuit court's ruling at trial as a finding that Hudson's discussion with the prosecutor was not a statement, and he argues that he "properly objected to not being provided with the substance of said oral statement."
We cannot address Craven's argument on appeal because he did not make it below. Craven argued below that the prosecutor's email was a statement; on appeal, he asserts that the State failed to provide him with the "substance" of Hudson's oral statement. Arguments not raised below are waived, and parties cannot change the grounds for an objection on appeal but are bound by the scope and nature of the objections and arguments presented at trial. Goins v. State , 2019 Ark. App. 11, 568 S.W.3d 300. We also note Craven failed to proffer the email at trial; that oversight would preclude a substantive review of his point on appeal regarding whether a statement was made and whether a statement was provided as required by Rule 17.1. See Brown v. State , 368 Ark. 344, 246 S.W.3d 414 (2007) (when evidence is excluded by the circuit court, the party challenging that decision must make a proffer of the excluded evidence at trial so that this court can review the decision, unless the substance of the evidence is apparent from the context).
Affirmed.
Hixson and Brown, JJ., agree.
Although Craven's attorney failed to renew his motion for directed verdict at the close of all evidence, the Arkansas Supreme Court has previously held that "when a defendant presents no evidence after a directed verdict motion is made, further reliance on that motion is not waived." Robinson v. State , 317 Ark. 17, 23, 875 S.W.2d 837, 841 (1994). Therefore, because Craven put on no additional evidence after the motion was made, his failure to renew it is not fatal to his appeal. | [
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RAYMOND R. ABRAMSON, Judge
Rashad Williams appeals the Crittenden County Circuit Court order terminating his parental rights to his son, L.C. (born in November 2013). On appeal, Williams argues that termination was clearly erroneous due to the denial of due process and the lack of evidence to support the circuit court's best-interest finding. We affirm.
On October 26, 2016, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of L.C. and his three half siblings. The petition listed Lola Conner as L.C.'s mother and Williams as L.C.'s father. The petition further indicated that Williams was incarcerated in the Arkansas Department of Correction (ADC). The petition also included the fathers of L.C.'s half siblings. In the affidavit attached to the petition, DHS alleged that Conner had stabbed one of L.C.'s half siblings twenty times. On October 28, 2016, the circuit court entered an ex parte order for emergency custody.
On November 1, the court entered a probable-cause order. The court ordered the parties to comply with the case plan, watch "The Clock is Ticking", complete parenting classes, and obtain stable housing and employment.
On February 21, 2017, the court adjudicated L.C. dependent-neglected due to Conner's physical abuse of a child, and the court also found aggravated circumstances. The court set concurrent goals of adoption and relative placement.
On June 6, DHS filed a petition to terminate Williams's and Conner's parental rights. On June 20, the court entered a review order. The court noted that L.C.'s paternal grandmother, Felicia Linell, had inquired about placement of L.C. but that DHS had recommended placing L.C. with his half siblings.
On July 10, Williams filed a "written answer to the complaint or a motion under Rule 12 of the Arkansas Rules of Civil Procedure." In the answer, Williams denied harming L.C. and asked the court to temporarily transfer his parental rights to his mother. He also stated that he wanted to attend the termination hearing.
On August 15, the court entered a permanency-planning order. The court noted that DHS was completing a packet for Linell through the Interstate Compact Placement of Children (ICPC) in Texas and that DHS would notify the court of the results.
On January 19, 2018, the court entered an order terminating Conner's parental rights; however, the court "dismissed" Williams. The court made a handwritten note that Williams "needed conflict counsel."
On July 9, the court entered a permanency-planning order. The court found that placement of L.C. with Williams was contrary to the child's best interest because Williams remained incarcerated. The court authorized DHS to file a petition for termination of Williams's parental rights, and counsel was appointed for Williams. The court set a termination hearing for September 28.
On July 18, DHS filed a petition to terminate Williams's parental rights. DHS alleged the failure-to-remedy, subsequent-factors, imprisonment, and aggravated-circumstances grounds. On September 28, the court continued the termination hearing to October 16 on Williams's counsel's request.
At the termination hearing, Demetria Wills, the DHS caseworker, testified that L.C. had been removed from Conner's custody in October 2016 because Conner had stabbed L.C.'s half sibling. She stated that L.C. was two years old at the time. She explained that when L.C. was taken into DHS custody, DHS did not know the whereabouts of Williams. She testified that the Pine Bluff child-support office sent her an order showing that Williams's paternity had been established by a DNA test on April 10, 2014. In September 2017, Wills learned that Williams was incarcerated for a second-degree-murder conviction and that he was scheduled to be released in 2030. She stated that DHS did not offer Williams services, did not send him copies of the court's orders or the case plan, and did not attempt to schedule visitations with L.C. She noted that Williams would not be released from prison until after L.C. had reached the age of majority. Wills testified that Williams's mother had contacted DHS about obtaining custody of L.C. and that she had initiated the ICPC process with her. She also stated that L.C. was placed in a foster home with his half siblings and that his foster parents are interested in adopting him. She testified that he is adoptable.
Williams testified that he had been imprisoned at the Varner Unit in Grady, Arkansas, since June 2016. He explained that he had pled guilty to second-degree murder and that he had received a thirty-year sentence. He stated that he will serve about seven and a half years, but he noted that he had been cited for different disciplinary violations that could prolong his release date. He testified that he had completed an anger-management class and that he was on a waiting list for parenting classes.
Williams stated that DHS did not notify him that L.C. had been taken into custody.
His mother informed him, and she learned about Conner's arrest from the internet. He acknowledged that he did not immediately contact DHS but explained that DHS is not on his call list. Williams stated that his mother had tried to contact DHS on his behalf. He testified that DHS did not send him a case plan or notify him of any hearings before the termination hearing. He stated that ADC permits visitations but that DHS did not transport L.C. to visit him. Williams explained that when he received the petition to terminate his parental rights, he wrote DHS a letter requesting a lawyer. He did not write a letter earlier because he did not know to whom and where to send it.
Williams asked the court to grant his mother custody of L.C. He stated that his mother had tried to obtain custody of L.C. but that DHS had not given her any information. He admitted that his mother had been convicted of second-degree murder in 1997. He stated that if the court did not grant his mother custody of L.C., he wanted his grandmother to have custody of the child. Williams explained that his grandmother lives in Pine Bluff but that DHS had not contacted her about L.C.
Following the hearing on November 20, 2018, the court entered an order terminating Williams's parental rights. The court found that both the imprisonment ground and the aggravated-circumstances ground supported termination. The court further found that it was in L.C.'s best interest to terminate Williams's parental rights. In making the finding, the court considered the likelihood that L.C. would be adopted and the potential harm that would be caused by placing the child with Williams. As to potential harm, the court found that L.C. would be subjected to potential harm because Williams was incarcerated in ADC for a thirty-year sentence since he had pled guilty to second-degree murder. Williams timely appealed the termination order to this court.
We review termination-of-parental-rights cases de novo but will not reverse the circuit court's ruling unless its findings are clearly erroneous. Dade v. Ark. Dep't of Human Servs. , 2016 Ark. App. 443, 503 S.W.3d 96. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we have noted that in matters involving the welfare of young children, we will give great weight to the circuit court's personal observations. Jackson v. Ark. Dep't of Human Servs. , 2016 Ark. App. 440, 503 S.W.3d 122.
The termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox v. Ark. Dep't of Human Servs. , 2014 Ark. App. 666, 448 S.W.3d 735. As a result, a heavy burden is placed on the party seeking to terminate the relationship. Id. The termination of parental rights is a two-step process that requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. T.J. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997) ; Smith v. Ark. Dep't of Human Servs. , 2013 Ark. App. 753, 431 S.W.3d 364. The first step requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step requires consideration of whether the termination of parental rights is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A).
On appeal, Williams first argues that the circuit court erred in terminating his parental rights because DHS abrogated its duty to provide him with copies of the case plan, the court orders, or any of the pleadings in the case. He points out that the DHS caseworker testified that she did not try to locate him for almost a year after DHS had obtained custody of L.C. He argues that DHS failed to permit him to have any meaningful participation in the case, thereby depriving him of due process.
However, Williams did not a raise a due-process argument to the circuit court. Even in termination cases, we will not address arguments raised for the first time on appeal. Lyons v. Ark. Dep't of Human Servs. , 2009 Ark. App. 271. A party cannot change an argument on appeal and is bound by the scope of the arguments made to the circuit court. Andrews v. Ark. Dep't of Human Servs. , 2012 Ark. App. 22, 388 S.W.3d 63 (citing Holiday Inn Franchising, Inc. v. Hotel Assocs., Inc. , 2011 Ark. App. 147, 382 S.W.3d 6 ). Because no specific due-process argument was raised below, this point is not preserved for our review.
Williams also argues that the circuit court erred in finding that it was in L.C.'s best interest to terminate his parental rights. He does not challenge the court's adoptability finding. Instead, he argues that there was insufficient evidence to show that he posed a potential harm to L.C. He asserts that there was no evidence that he ever hurt the child. He further points out that even though he received a thirty-year sentence for second-degree murder, he could be released earlier, and placement with a relative could allow him the opportunity to help raise L.C. after his release.
In determining the best interest of the juvenile, a circuit court must take into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Myers v. Ark. Dep't of Human Servs. , 2011 Ark. 182, 380 S.W.3d 906. In considering potential harm caused by returning the child to the parent, the circuit court is not required to find that actual harm would result or affirmatively identify a potential harm. Welch v. Ark. Dep't of Human Servs. , 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be viewed in a forward-looking manner and in broad terms, including the harm the child suffers from the lack of a stable, permanent home. Collins v. Ark. Dep't of Human Servs. , 2013 Ark. App. 90.
In this case, we hold that there was no error in the circuit court's potential-harm finding. The evidence showed that Williams began serving a thirty-year prison sentence for second-degree murder in 2016-just two years before the termination hearing when L.C. was two years old. The duration of Williams's prison sentence as well as the violent nature of the offense supports the court's potential-harm finding. Further, as to relative placement, Williams's mother also has a second-degree-murder conviction, and his grandmother did not appear at the termination hearing. We therefore hold that the circuit court did not err in finding potential harm and that it was in L.C.'s best interest to terminate Williams's parental rights.
Affirmed.
Gruber, C.J., and Harrison, J., agree.
Conner is not a party to this appeal.
Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) (Supp. 2017).
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) .
Ark. Code Ann. § 9-27-341(b)(3)(B)(viii)(a) .
Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B) .
Wills acknowledged that the petition for emergency custody indicated that Williams was incarcerated, but she had not read the petition until the day of the termination hearing.
We recognize that at the termination hearing, Williams moved for a directed verdict on the subsequent-factors ground and argued that the evidence was insufficient to support that ground because DHS did not provide him with pleadings, orders, or the case plan. He did not, however, make a due-process argument. | [
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BRANDON J. HARRISON, Judge
Charity Allen-Grace appeals the termination of her parental rights to her three children-A.S., A.G.1, and A.G.2. On appeal, she argues that there was insufficient evidence to support the court's best-interest determination. We affirm.
I. Background
In February 2018, we affirmed the Washington County Circuit Court's determination that A.S., A.G.1, and A.G.2. were dependent-neglected. Allen-Grace v. Ark. Dep't of Human Servs. , 2018 Ark. App. 83, 542 S.W.3d 205. In April 2018, the circuit court entered a permanency-planning order. It found that Charity had complied partially with the case plan by maintaining contact with DHS, maintaining a safe and clean home, and staying employed. The court, however, also found that Charity stopped submitting to random drug screens, failed to complete individual counseling, and was arrested for sexually assaulting A.S.'s boyfriend, a minor. Charity also had a previous misdemeanor-assault charge with A.S. as the victim. The court further found that Charity married Kenneth Shaw, a prisoner in Missouri. The court noted that the juveniles were being cared for by relatives and termination of parental rights was in the children's best interest. The court ordered Charity to cooperate with DHS, complete a psychological evaluation, abstain from illegal drugs or alcohol, not abuse prescription drugs, submit to random drug screens twice a month, and "demonstrate ability to protect juveniles and keep them safe from harm," among other things. In May 2018, the Arkansas Department of Human Services (DHS) filed a petition to terminate Charity's parental rights.
The circuit court convened hearings on DHS's termination petition on 1 August, 14 September, and 4 October 2018. The parties presented the prior orders in the case, a court report, A.S.'s counseling report, a court appointed special advocate (CASA) report, a visitation log, and a letter from Charity to the circuit court. The evidence showed that Charity owns a house in Springdale, which a CASA worker observed to be "clean, safe, and appropriate," that Charity's marriage to Kenneth Shaw was annulled in June 2018, and that Charity works as an accountant for a tile store.
After the children were initially removed from their mother's custody, the circuit court placed custody of A.S. with her paternal grandparents Peter Halpern and Leslie Halpern and custody of A.G.1 and A.G.2 with their paternal grandparents, Joanne Grace and Albert Grace. By all accounts, the children were doing well living with their paternal grandparents. A.S., A.G.1, and A.G.2 had monthly sibling visits. The DHS visitation log showed that Charity attended almost all weekly visits with the children from 6 July 2017 to 2 October 2018.
According to DHS's drug-screen log for Charity, she had a "verified prescription for Xanax" and tested positive for "BZO" on more than one occasion. Charity failed to show up for four of the thirteen scheduled drug tests from April to September 2018.
A.G.1 and A.G.2's therapist, Kimberly Elliott, testified that she believed it would be detrimental to the girls' mental health for the court to return custody of the children to Charity. This was because of the traumas experienced by the girls when they were with Charity. In her opinion, the girls have a "very insecure attachment" to each other because of the instability in their lives. Elliott diagnosed A.G.1 with adjustment disorder with anxiety and A.G.2 with other-specified-trauma-related disorder. She said that A.G.1 was "working out in her mind" why Charity would be in bed all day or have slurred speech. And A.G. 2 was piecing together that "Mom's put bad things in her body, so her mind doesn't work the same[.]" In short, Charity had substance-misuse issues that were apparent to her children.
Therapist Jessica Kitchens testified that A.S. had been diagnosed with posttraumatic stress disorder. According to Kitchens, it would set back A.S. "tremendously" to return to her mother. Returning custody to Charity would be harmful to A.S.'s mental health because she would not feel safe. In Kitchens's view, A.S.'s living with the Halperns has helped A.S. feel safe and has been a calm environment for her.
Caseworker Kari Horton testified that A.S. wanted to be adopted by the Halperns and that she was thriving in their care. A.S.'s father, Matthew Steed, was supportive of his parents adopting A.S. In Horton's opinion, Charity had kept DHS informed throughout the case, had maintained stable housing and employment, had submitted to random drug screens, had demonstrated sobriety, and had visited the children consistently. Charity, however, had not resolved her criminal charges.
Horton further testified that there were true findings against Charity of striking a child with her fist, striking a child on the head or face, sexual contact, sexual exposure, pornography and exposure to live sex acts, and indecent exposure. She also said that Charity had not followed the recommendations of the psychological evaluation and that she did not successfully complete her individual counseling. No documentation of criminal charges or a psychological evaluation were accepted as evidence. On cross-examination, Horton could not say the dates of the true findings other than they were in November 2017.
DHS's position, according to Horton, was that adoption by the children's grandparents would give them more permanency than a permanent-custody situation. In Horton's opinion, it was best for Charity's parental rights to be terminated, and the children were adoptable. A.G.1 and A.G.2 were very bonded to their grandfather, and he was their primary caregiver.
Charity testified during the termination hearings. Among other things, Charity said that she had completed ten individual counseling sessions and that DHS had refused to pay for more sessions. Charity testified that she was ready to accept the children into her home and that she works full time, pays all her bills, and owns her car. Charity expressed concern that she had not been able to see A.S. for more than a year and that Mr. Halpern had made several threats against her (Charity) and had tried to undermine her at work and get her fired. Charity expressed concern that A.S. is using illegal drugs. Importantly, she admitted that the criminal charges against her had not yet been resolved. She also said the criminal allegations involving A.S.'s boyfriend did not emerge until after A.S. was in the Halperns' custody.
On cross-examination and redirect, Charity told the court that she had been arrested for a DWI in Missouri, that she refused to blow for the test, and that her blood test at the police station was negative so the criminal charges had been dropped. The court at one point stated that Charity had "pled no contest," and Charity responded that she paid a fine. It is not clear from the exchange what, exactly, the court and Charity were discussing.
Alan Grace testified that A.G.1 and A.G.2 receive $ 300-$ 350 from the government based on Alan's disability. Alan's father, Albert Grace, testified that the girls had lived in his home since June 2017 and that if the court decided to terminate Alan and Charity's parental rights, he and his wife are willing and able to adopt A.G.1 and A.G.2. On cross-examination, Albert stated that he was sixty-seven years old and his wife was sixty-six years old and that if they either received permanent custody or adopted the girls that they would take care of them. He also said that he and his wife have enough income and that they used the disability payments to get what the girls needed. But he also stated that the disability payments were not necessary to take care of the girls and that he did not think that the court should deny the termination petition so that the girls could still receive the disability payments. Joanne Grace testified that she, too, thought the children should be adopted because it would give them more stability.
At the end of the termination hearings, which had been spread out over several days over the course of several weeks, Horton testified that Charity failed to show up at a court-ordered closure visit with A.S. It is undisputed that Charity informed Horton that she would not be attending. Horton communicated to the court on October 4 that A.S. was upset that Charity did not appear. Charity replied that there was a no-contact order in place so that is why she could not attend the visit.
The circuit court entered an order terminating Charity Allen-Grace's, Alan Grace's, and Matthew Steed's parental rights as to A.S., A.G.1, and A.G.2 on 31 October 2018. Charity has appealed that order.
II. Discussion
We review termination-of-parental-rights cases de novo. Cheney v. Ark. Dep't of Human Servs. , 2012 Ark. App. 209, 396 S.W.3d 272. But we will not reverse the circuit court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we give due deference to the opportunity of the circuit court to assess the witnesses' credibility. Id.
A circuit court's order that terminates parental rights must be based on clear and convincing evidence.
Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction that the allegation has been established. Pratt v. Ark. Dep't of Human Servs. , 2012 Ark. App. 399, 413 S.W.3d 261. Proof of only one statutory ground is sufficient to terminate parental rights. Gossett v. Ark. Dep't of Human Servs. , 2010 Ark. App. 240, 374 S.W.3d 205. A circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) -(ii) (Supp. 2017).
Here, Charity challenges only the circuit court's best-interest determination. She first argues that the circuit court failed to consider the effect the termination decision would have on the future sibling relationship between A.S., A.G.1, and A.G.2. She also argues that permanent custody was a less restrictive alternative to termination. Third, she argues that the age of the grandparents (the Graces) "diminished the likelihood that they could raise a 6-year-old and a 9-year-old until the age of majority without assistance" and that by terminating parental rights, A.G.1 and A.G.2 are deprived of the disability income from their father. Charity argues that three siblings will become strangers to each other should this court allow the termination to stand. The circuit court, she argues, erred by failing to consider this impact of termination on the sibling relationships. Charity does not contest that her three children are adoptable.
The circuit court found that the juveniles would be at a substantial risk of serious harm if they were returned to Charity because she "still has pending criminal charges" and "Mother's choices throughout the case have continued to demonstrate that she cannot make her children a priority[.]"
We hold that the circuit court did not err in finding that termination of Charity's parental rights was in her children's best interest. The circuit court must consider a parent's compliance and behavior during the entire dependency-neglect case as well as the evidence presented at the termination hearing to decide whether the termination is in the children's best interest. Ark. Code Ann. § 9-27-341(a)(4)(B) (Supp. 2017). Here, the case began because Charity hit A.S. in the face and appeared to be intoxicated when police officers arrived. Allen-Grace v. Ark. Dep't of Human Servs. , 2018 Ark. App. 83, at 10, 542 S.W.3d 205, 210. During the dependency-neglect case, Charity was criminally charged for abusing A.S.'s boyfriend and that allegation had not been resolved by the termination hearing. The court heard evidence about other arrests and true findings against Charity. The children's therapists, the CASA volunteer, and the DHS caseworker all agreed at the termination hearing that the children would be at risk of harm if placed with Charity. Charity failed to appear for several drug tests, and she had a history of substance misuse. This is all evidence of the potential for future harm, which makes the court's best-interest finding not clearly erroneous.
As for Charity's argument regarding termination and the impact it has on the children's financial situation and relationship, we affirm. When making its best-interest analysis, the circuit court considers the children individually when determining whether termination is in each child's best interest and cannot treat the children as an amorphous group in which the best interest of one will meet the interests of all. Black v. Ark. Dep't of Human Servs. , 2018 Ark. App. 518, at 7, 565 S.W.3d 518, 523. Keeping siblings together is an important consideration but not outcome determinative, as the best interest of each child is the polestar consideration. Ark. Dep't of Human Servs. v. Couch , 38 Ark. App. 165, 169, 832 S.W.2d 265, 268 (1992) (noting that some siblings have special needs and there are situations in which one child would be in danger from the other or one would be neglected because of the other). The intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3).
Here, the children had been living with their respective paternal grandparents for more than one year. By all accounts, the children were deeply bonded to the grandparents as their primary caregivers, and the grandparents were taking excellent care of them. The CASA volunteer, the caseworker, and the children's therapists all recommended that the children stay where they had been throughout the case. There was nothing to indicate that the grandparents would not allow the siblings to keep visiting as they had throughout the dependency-neglect case. At the termination hearing, the court determined that the children were still at risk of harm from Charity.
Importantly, Charity was the only parent to appeal the termination order. The grandparents caring for the children in this case have rights derivative of the children's fathers Matthew Steed and Alan Grace. Charity lacks standing to challenge that a termination deprives the girls of disability income or that the termination of the fathers' rights affects the grandparents' ability to care for the children. See Cole v. Ark. Dep't of Human Servs. , 2018 Ark. App. 121, at 7, 543 S.W.3d 540, 544. The court's fact-based conclusion in its termination order that it was in A.S.'s best interest to be adopted by the Halperns and in A.G.1's and A.G.2's best interest to be adopted by the Graces is not clearly erroneous under the circumstances.
We affirm the termination of Charity Allen-Grace's parental rights.
Affirmed.
Gruber, C.J., and Abramson, J., agree.
Steed's parental rights were also terminated, but he has not appealed the termination. | [
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LARRY D. VAUGHT, Judge
James Edward Crippen appeals the Crawford County Circuit Court's order denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. On appeal, Crippen argues that his trial counsel was ineffective in failing to (1) object to the introduction of a drug-task-force officer's testimony and an Arkansas State Crime Laboratory report and (2) call the crime-lab chemist as a witness at trial. We affirm.
On September 22, 2014, Crippen was charged by felony information as a habitual offender with simultaneous possession of drugs and firearms, trafficking methamphetamine, possession of drug paraphernalia, theft by receiving, fleeing, and possession of a firearm by certain persons. At trial, drug-task-force officer Lanny Reese testified that during a search incident to Crippen's arrest, officers found a case containing "around seven ounces of suspected methamphetamine." Reese also testified that the package had some "big crystal rocks in there" and that it was extremely white.
During Reese's testimony, the State sought to introduce the crime-lab report that described the substance tested as a "clear crystalline substance" and concluded that the substance was 200.4 grams of pure methamphetamine. Counsel for Crippen stipulated to the admission of the report, stating on the record that it was a tactical decision. Relevant to this appeal, the jury convicted Crippen of trafficking methamphetamine pursuant to Arkansas Code Annotated § 5-64-440(b)(1) (Repl.
2016), which provides that a person engages in trafficking a controlled substance if he or she possesses, possesses with the purpose to deliver, delivers, or manufactures 200 grams or more of methamphetamine. For this conviction, Crippen was sentenced to twenty-five years' imprisonment. Thereafter, Crippen's counsel filed a no-merit appeal and a motion to withdraw as counsel. On May 16, 2018, this court affirmed Crippen's convictions and granted his counsel's motion to withdraw. Crippen v. State , 2018 Ark. App. 315, 2018 WL 2228117.
Crippen then filed a timely petition for postconviction relief in the circuit court. In that petition, he raised three claims of ineffective assistance of counsel: (1) trial counsel was ineffective for failing to investigate and perform pretrial functions; (2) trial counsel was ineffective for failing to call the crime-lab chemist as a witness at trial; and (3) trial counsel was ineffective for failing to object to the testimony of Reese and to the introduction of the crime-lab report.
The circuit court held a hearing on Crippen's Rule 37 petition. Crippen and his trial counsel, David Dunagin, testified. At the conclusion of the hearing, the court denied Crippen's petition. An order denying the petition was entered on October 9, 2018. In the order, the court rejected Crippen's arguments that his trial counsel was ineffective for failing to conduct a pretrial investigation and for failing to call the crime-lab chemist as a witness at trial. The order did not address or rule on Crippen's claim that his trial counsel was ineffective for failing to object to Reese's testimony and to the introduction of the crime-lab report. This appeal followed.
When reviewing a circuit court's ruling on a Rule 37.1 petition, we will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Rayburn v. State , 2019 Ark. App. 79, at 2-3, 570 S.W.3d 516, 519. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. at 3, 570 S.W.3d at 519.
The benchmark question to be resolved in judging a claim of ineffective assistance of counsel is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id. , 570 S.W.3d at 519. A Rule 37 petitioner's ineffective-assistance-of-counsel claims are analyzed under the two-prong standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a petitioner to show that his or her counsel's representation was deficient, and he or she suffered prejudice as a result. "Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable." Rayburn , 2019 Ark. App. 79, at 3, 570 S.W.3d at 520 (citing State v. Barrett , 371 Ark. 91, 96, 263 S.W.3d 542, 546 (2007) ).
Pursuant to Strickland and its two-prong standard, first a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Id. , 570 S.W.3d at 520. A petitioner making an ineffective-assistance-of-counsel claim must show that his or her counsel's performance fell below an objective standard of reasonableness such that counsel committed errors so serious as to not be functioning as counsel at all. Id. , 570 S.W.3d at 520. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 4, 570 S.W.3d at 520. The burden is on the petitioner to overcome this presumption by identifying specific acts or omissions by counsel that could not have been the result of reasoned professional judgment. Id. , 570 S.W.3d at 520.
Second, the petitioner must show that, considering the totality of the evidence before the fact-finder, counsel's deficient performance so prejudiced petitioner's defense that he or she was deprived of a fair trial. Id. , 570 S.W.3d at 520. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. , 570 S.W.3d at 520. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. , 570 S.W.3d at 520. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. , 570 S.W.3d at 520. A petitioner bears the burden of providing sufficient facts to affirmatively support any claims of ineffective assistance of counsel. Id. , 570 S.W.3d at 520. Thus, conclusory statements, without more, cannot form the basis for postconviction relief. Id. at 4-5, 570 S.W.3d at 520.
Crippen raises two points on appeal. The first is that the circuit court clearly erred in finding that his trial counsel was not ineffective on the basis of Crippen's claim that he failed to object to the testimony of Reese and to the introduction of the crime-lab report because there were discrepancies in his testimony and in the report. Specifically, Crippen argues that Reese testified that officers found "around seven ounces" of "extremely white" drugs, but the crime-lab report concluded that it was 200.4 grams of a "clear crystalline substance" that had been tested. Crippen argues that "[t]he marked difference in the description of the substance by the officer and the chemist leads ... to the conclusion that there is a significant possibility that the evidence tested was not the same as that taken by the officer." Crippen suggests that the evidence was tampered with (increased in weight), which allowed the State to overcharge him with trafficking.
We cannot reach the merits of Crippen's first point on appeal because it is not preserved for our review. As set forth above, Crippen's Rule 37 petition set forth three claims for relief, but the circuit court's order denying the petition addressed only two of them. The order did not address Crippen's claim that his trial counsel was ineffective for failing to object to Reese's testimony and the introduction of the crime-lab report.
In the postconviction context, when the circuit court provides written findings on at least one, but fewer than all, of the petitioner's claims, our supreme court has held that an appellant has an obligation to obtain a ruling on any omitted issues if they are to be considered on appeal. Cowan v. State , 2011 Ark. 537, at 3, 2011 WL 6275694 (citations omitted). If the order does not contain a ruling on an issue or issues, it is incumbent on the appellant to file a motion asking the court to address the omitted issues. Id. The requirement that an appellant obtain a ruling on all issues he or she wishes to raise on appeal is procedural, and all appellants, including those proceeding without counsel, are responsible for following procedural rules in perfecting an appeal. Id. Matters left unresolved are waived and may not be raised on appeal. Id. Because Crippen failed to get a ruling from the circuit court on his first point on appeal, it is not preserved.
Crippen's second point on appeal is that the circuit court clearly erred in finding that his trial counsel was not ineffective for failing to call the crime-lab chemist as a witness at trial, which he claims is a violation of his Sixth Amendment right to confront that witness. Again, he relies on the discrepancies in the description and weight of the drugs in the crime-lab report and in the testimony of Reese and contends that someone tampered with the evidence to overcharge him with drug trafficking. He argues the testimony of the chemist would have confirmed his theory.
Whether to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. Van Winkle v. State , 2016 Ark. 98, at 10, 486 S.W.3d 778, 786 (citing Nelson v. State , 344 Ark. 407, 412, 39 S.W.3d 791, 795 (2001) (per curiam)). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Nelson , 344 Ark. at 412, 39 S.W.3d at 795. When assessing an attorney's decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness. Id. , 39 S.W.3d at 795. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland . Id. , 39 S.W.3d at 795. A bare allegation that there are witnesses who could have been called in the petitioner's behalf will not support a claim of ineffective assistance of counsel. Id. , 39 S.W.3d at 795. Decisions involving which witnesses to call to benefit a case lie purely within the realm of counsel's trial tactics. Id. at 412-13, 39 S.W.3d at 795.
Crippen has not sustained his burden of proving that his attorney's strategic decision not to call the crime-lab chemist to testify was professionally unreasonable or deficient. His attorney, Dunagin, who reported at the postconviction hearing that he had tried fifty drug cases and worked on 300 appeals, testified that it was his trial strategy not to call the chemist as a witness at trial because he believed her testimony would bolster the credibility of her findings that the methamphetamine weighed more than 200 grams, which would have benefited the State-not Crippen. Dunagin further testified that the "little bit" of discrepancy between Reese's weight and description of the methamphetamine and the weight and description in the crime-lab report "[did] not bother [him] at all." He testified that Reese is not an expert in weighing and describing methamphetamine-the chemist is. Dunagin stated: "There's nothing I could have asked her that would have helped make a difference in getting it below 200 grams." He said that the chemist would have testified to the information contained in her report and would not have changed it. Dunagin stated that he stipulated to the crime-lab report and did not call the chemist to testify because he did not want the State to be "waving this chemist in front of the jury four or five times that [the methamphetamine] was more than 200 grams." Dunagin added that he examined the chain-of-custody/tampering issue and concluded there was no merit to it. He testified that, in his opinion, the chemist would not testify that the drugs found by the officers and introduced at trial were not the same drugs she tested.
Dunagin further stated that a week before trial he advised Crippen of his trial strategy not to call the chemist to testify. Crippen admitted at the Rule 37 hearing that the State contacted Dunagin the week before trial to advise that the chemist would not be at trial. But Crippen denied that Dunagin advised him (Crippen) at that time that he (Dunagin) did not plan to call the chemist. On this issue, the circuit court believed Dunagin, and the circuit court is in the best position to resolve any conflicts in testimony. Pardue v. State , 363 Ark. 567, 571, 215 S.W.3d 650, 655 (2005). The judge at a postconviction-relief hearing is not required to believe the testimony of any witness, particularly that of the accused. Id. , 215 S.W.3d at 655.
Finally, Crippen has failed to demonstrate that he suffered prejudice from Dunagin's failure to call the chemist as a witness at trial. In other words, he has failed to show that the chemist's testimony would have changed the outcome of the trial. The chemist did not testify at the postconviction hearing, and Crippen did not proffer her testimony in any other form. Therefore, it is sheer speculation and conjecture to conclude that the chemist would have supported Crippen's evidence-tampering theory by testifying that the drugs found and described by Reese were not the same drugs she tested. A bare allegation that there are witnesses who could have been called in the petitioner's behalf will not support a claim of ineffective assistance of counsel. Nelson , 344 Ark. at 412, 39 S.W.3d at 795.
After a thorough review of the record, we hold that the circuit court's findings that Dunagin's decision not to call the chemist was a matter of trial strategy and not ineffective assistance of counsel are not clearly erroneous.
Affirmed.
Klappenbach and Whiteaker, JJ., agree.
Crippen's counsel also stated on the record that it was his tactical decision to not require the State to produce the chemist who had authored the report for trial because he did not want the chemist to emphasize the findings in the report to the jury.
Crippen was also convicted of possessing drug paraphernalia and fleeing, for which he was sentenced to five years' imprisonment and a $ 5,000 fine and six years' imprisonment, respectively. These terms of imprisonment, along with the twenty-five-year term for trafficking, were to run consecutively, for a total of thirty-six years' imprisonment. Crippen v. State , 2018 Ark. App. 315, at 1, 2018 WL 2228117. The circuit court dismissed the charges for simultaneous possession of drugs and firearms, possession of a firearm, and being a habitual offender. Id. The jury acquitted Crippen of the theft-by-receiving charge. Id.
There are 198.447 grams in seven ounces.
In his brief on appeal, Crippen concedes that the circuit court did not rule on his claim that his trial counsel was ineffective for failing to object to the introduction of the report: "The Judge ... never ruled on that issue one way or the other."
Dunagin testified that Reese likely used a five-dollar scale from Walmart to weigh the drugs.
Crippen argues on appeal that the stipulation to the admission of the crime-lab report and not to call the chemist to testify was improper because there is no order entered by the circuit court pursuant to Arkansas Rule of Criminal Procedure 20.4 setting forth the parties' agreement to stipulate to those things. However, this argument was not raised below, and there is no ruling on it by the circuit court; therefore, we cannot consider it on appeal.
After filing his postconviction petition, Crippen filed a pro se motion "demanding" the chemist who performed the drug testing be present at the Rule 37 hearing. At the postconviction hearing, the circuit court denied the motion. Crippen does not challenge that ruling on appeal. | [
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BRANDON J. HARRISON, Judge
Lonnie Hazelwood appeals the revocation of his suspended imposition of sentence (SIS), arguing that the circuit court erred in revoking his SIS because the State presented evidence that was illegally obtained. We affirm.
In July 2013, Hazelwood pled guilty to possession of a controlled substance (methamphetamine) and was sentenced to fifty-four months' imprisonment and sixty months' SIS. The conditions of his SIS included the requirement that he not commit a criminal offense punishable by imprisonment. He was also required to submit to a search of his "person, place of residence, motor vehicle, or other property ... at any time, day or night, with or without a search warrant, whenever requested by any supervising officer or law enforcement officer."
In September 2016, the State petitioned to revoke Hazelwood's SIS, alleging that he had failed to pay fines and costs as directed and that on or about 5 August 2016, he had committed the new offense of possession of a controlled substance (methamphetamine). The circuit court convened a revocation hearing on 11 June 2018. Jonesboro police officer Brian Bailey testified that on 5 August 2016, he was on patrol and observed Hazelwood sitting in a truck in front of his house. Bailey checked his computer and saw that Hazelwood had an outstanding warrant out of Jonesboro and that he was on parole. Bailey approached Hazelwood and told him about the outstanding warrant; Hazelwood responded that he had "already appealed the warrant" but was unable to find paperwork to verify that claim. Bailey contacted dispatch, which confirmed the warrant was valid. Bailey asked Hazelwood to exit the truck, handcuffed him, and searched him. In Hazelwood's front right pocket, Bailey found a cellophane bag containing suspected methamphetamine. Bailey then placed Hazelwood under arrest. Agent Rick Guimond testified as to the lab results on the substance that Bailey found on Hazelwood's person; the lab confirmed it was .2834 grams of methamphetamine.
Hazelwood testified that he had never been served with a warrant out of Jonesboro and that he did not have methamphetamine on his person the day Bailey arrested him. He acknowledged that he was on parole at the time. He also said he had a zero balance on his fines and costs. He claimed that Bailey harassed him; "Every time I would see him he would pull me over."
After the close of evidence, Hazelwood moved to dismiss, asserting that "the warrant was not confirmed before his pat down and search began, and we feel that violates his rights." The circuit court found that Bailey had a right to initiate the stop based on his knowledge of the warrant and that Hazelwood was on parole, "which means that he is subject to search at a different level than someone who's not on parole." The court denied the motion to dismiss, found that Hazelwood had violated the conditions of his SIS by possessing methamphetamine, and sentenced him to six years' imprisonment. Hazelwood now appeals the revocation.
To revoke probation or a suspended sentence, the burden is on the State to prove the violation of a condition of the probation or suspended sentence by a preponderance of the evidence. Jones v. State , 355 Ark. 630, 144 S.W.3d 254 (2004). On appellate review, the circuit court's findings will be upheld unless they are clearly against the preponderance of the evidence. Id. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for revocation of probation or suspended sentence. Id. Thus, the burden on the State is not as great in a revocation hearing. Id. Furthermore, because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, we defer to the circuit court's superior position. Id. Finally, only one violation is required to sustain a revocation. Springs v. State , 2017 Ark. App. 364, 525 S.W.3d 490.
Hazelwood argues that the circuit court erred in revoking his SIS because "the State presented evidence that was illegally obtained in violation of [his] right to due process." He asserts that the State did not produce either the Jonesboro warrant or the search waiver on file as part of his SIS, and while he acknowledges that the search waiver requires him to "submit" to a search by any law enforcement officer at any time, he argues he did not "consent to the search, for purposes of any seized items being admissible at any future trial or hearing." Hazelwood contends that Bailey used the warrant and the search waiver as a pretext for "achiev[ing] his primary purpose of revoking Appellant's suspended sentence."
We hold that Hazelwood's contention of an illegal search is unavailing on the basis of the search waiver he signed as part of his SIS. He admits he was subject to search by any officer at any time, and there is no requirement that he also consent to the use of any evidence obtained as a result of such a search.
Affirmed.
Hixson and Brown, JJ., agree.
The State asserts that we lack jurisdiction in this case because Hazelwood has not properly appealed from the sentencing order. The notice of appeal lists the case number for Hazelwood's new possession charge (CR-16-928) instead of the case number for the revocation case (CR-13-526), but it is evident from the content of both the notice of appeal and his argument on appeal that it is the revocation that is being appealed. Because our supreme court requires only substantial compliance with Ark. R. App. P.-Civ. 3(e), see Mann v. Pierce , 2016 Ark. 418, 505 S.W.3d 150, we hold that we have jurisdiction. | [
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KAREN R. BAKER, Associate Justice
Appellant Steven L. McArthur brings this appeal from the denial of his pro se petition for writ of habeas corpus. Also pending is McArthur's motion for default judgment. In 1991 a jury found McArthur guilty of capital murder in the death of Rodney Spence. He was sentenced to life imprisonment without parole. We affirmed. McArthur v. State , 309 Ark. 196, 830 S.W.2d 842 (1992).
In 2018, McArthur filed a pro se petition for a writ of habeas corpus in the county where he is incarcerated and raised the following grounds for relief: (1) that new evidence has emerged consisting of affidavits executed by his accomplice, Donald Hawley, and two alleged witnesses to the crime; (2) that based on the information set forth in these affidavits, McArthur is actually innocent of capital murder; (3) that material evidence was withheld at his trial in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; (4) that the sheriff conspired to submit false testimony and evidence; (5) that the prosecutor was guilty of misconduct for presenting false testimony at McArthur's trial; (6) that the trial court committed judicial misconduct by allowing the prosecutor to present false testimony; (7) that his trial counsel was ineffective; (8) that the trial court lacked jurisdiction due to a violation of his right to speedy trial and that the judgment of conviction for capital murder is illegal on its face because it does not include a conviction for the underlying felony of aggravated robbery; (9) that the State failed to appoint a second attorney in McArthur's capital-murder case; (10) that the prosecutor waived the death penalty without McArthur's permission; (11) that McArthur was not provided with access to a law library while he was in custody awaiting trial.
The circuit court found that the habeas petition was untimely and without merit. On appeal, McArthur essentially reasserts the same grounds for relief that he raised below and which are set forth above, with the exception of his claims based on ineffective assistance of counsel, failure to appoint a second attorney, and waiver of the death penalty. Claims that are raised below but have not been reasserted on appeal are considered abandoned. Ratliff v. Kelley , 2018 Ark. 105, 541 S.W.3d 408.
A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Garrison v. Kelley , 2018 Ark. 8, 534 S.W.3d 136. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. This court may affirm a circuit court when it has reached the right decision, albeit for the wrong reason, so long as the issue was raised and a record was developed below. Ark. State Bd. of Election Comm'rs v. Pulaski Cty. Election Comm'n , 2014 Ark. 236, 437 S.W.3d 80. Because the circuit court did not clearly err when it found that McArthur's petition for a writ of habeas corpus was without merit, we affirm. Accordingly, McArthur's motion for default judgment is denied.
A petitioner for a writ of habeas corpus who does not allege his or her actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he or she is being illegally detained. Garrison , 2018 Ark. 8, 534 S.W.3d 136. A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Baker v. Norris , 369 Ark. 405, 255 S.W.3d 466 (2007). If a petitioner for habeas relief fails to raise a claim within the purview of a habeas action, the petitioner fails to meet his or her burden of demonstrating a basis for the writ to issue. Edwards v. Kelley , 2017 Ark. 254, 526 S.W.3d 825.
A habeas proceeding does not afford a prisoner an opportunity to retry his or her case, and it is not a substitute for direct appeal or postconviction relief. Gardner v. Kelley , 2018 Ark. 300, 2018 WL 5076670. Habeas proceedings are not a means to challenge the sufficiency of the evidence to sustain a judgment. Id. Claims which could have been raised in the trial court or on direct appeal and settled there are not cognizable in habeas proceedings. Id. Proceedings for the writ are not intended to require an extensive review of the record of the trial proceedings, and the circuit court's inquiry into the validity of the judgment is limited to the face of the commitment order. Id. Accordingly, assertions of trial error and due-process claims do not implicate the facial validity of the judgment or the jurisdiction of the trial court. Philyaw , 2015 Ark. 465, 477 S.W.3d 503. Furthermore, we have held that claims of actual innocence are effectively challenges to the sufficiency of the evidence and are thus due-process claims that are not cognizable in habeas proceedings. Stephenson v. Kelley , 2018 Ark. 143, 544 S.W.3d 44. Finally, a claim of prosecutorial misconduct does not implicate the facial validity of the judgment or the jurisdiction of the trial court, and such an allegation does not support issuance of a writ of habeas corpus. Muldrow v. Kelley , 2018 Ark. 126, 542 S.W.3d 856.
For the reasons set forth above, the majority of McArthur's claims are not grounds for the writ because they do not implicate either the jurisdiction of the trial court or the legality of his sentence and are therefore not cognizable in habeas proceedings. Rather, the claims should have been raised at trial, on direct appeal, or in a timely postconviction proceeding. Gardner , 2018 Ark. 300.
McArthur raises two claims that purport to challenge the facial legality of his conviction as well as the jurisdiction of the trial court. Both are without merit. McArthur is mistaken that the judgment of conviction for capital murder is illegal because he was not convicted of the underlying felony of aggravated robbery. The face of the judgment reveals that the murder for which McArthur was convicted was committed on January 20, 1991. At the time the crime was committed, a defendant could not be convicted for both capital murder and its underlying felony. See Walker v. State , 353 Ark. 12, 110 S.W.3d 752 (2003). Here, the face of the judgment-and-conviction order reflects that McArthur was convicted and sentenced to life imprisonment for capital murder in keeping with the law that was in effect at the time the crime was committed. The sentence of life without parole for capital murder is not an illegal sentence, in that the only sentences prescribed for capital murder are either death or life imprisonment. See Ark. Code Ann. § 5-10-101(c) (1987). When the petitioner does not show that on the face of the commitment order there was an illegal sentence imposed, the claim does not implicate the jurisdiction of the court to hear the case, and the claim is not one that is cognizable in habeas proceedings. Williams v. Kelley , 2017 Ark. 200, 521 S.W.3d 104. Likewise, a violation of a defendant's right to a speedy trial does not deprive the trial court of jurisdiction, and McArthur's allegation regarding a speedy-trial violation does not state a viable habeas claim. Id.
None of the claims raised by McArthur are sufficient to demonstrate that the trial court lacked jurisdiction or that the judgment of conviction was invalid on its face. As stated above, a petition for writ of habeas corpus does not provide the petitioner with the opportunity to retry his case or to challenge the sufficiency of the evidence that underpinned the conviction. Gardner , 2018 Ark. 300. McArthur failed to make a showing that the face of the judgment is invalid or to present evidence of probable cause to believe he is being illegally detained. Story v. State , 2017 Ark. 358, 2017 WL 6376368. Because circuit courts have subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes, McArthur was tried in a court of competent jurisdiction. Love v. Kelley , 2018 Ark. 206, 548 S.W.3d 145. Finally, McArthur alleges on appeal that the circuit court erred in not holding a hearing on his habeas petition. Our statutory scheme does not mandate a hearing on a habeas petition, and a hearing is not required when probable cause for issuance of the writ is not shown. Collier v. Kelley , 2018 Ark. 170, 2018 WL 2251147.
Affirmed; motion denied.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
The majority has improperly construed the Arkansas habeas statute. It states in pertinent part:
(a)(1) The writ of habeas corpus shall be granted forthwith by any of the officers enumerated in § 16-112-102(a) to any person who shall apply for the writ by petition showing, by affidavit or other evidence, probable cause to believe he or she is detained without lawful authority, is imprisoned when by law he or she is entitled to bail, or who has alleged actual innocence of the offense or offenses for which the person was convicted.
Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). The statute does not limit the writ to "facial invalidity of the judgment or the lack of jurisdiction by the trial court." The plain language of our habeas statute does expressly contemplate an allegation of "actual innocence" without resort to Act 1780 of 2001, codified at Arkansas Code Annotated section 16-112-201. Many of Mr. McArthur's claims could constitute imprisonment without lawful authority.
I also must note that the majority is correct when it states that "the majority of these claims were raised in McArthur's pro se second petition to reinvest jurisdiction in the trial court to consider a petition for a writ of error coram nobis filed in this court, including the claims of innocence with the supporting affidavits." However, the majority is not quite accurate when it asserts that "[t]he claims were addressed and rejected." In reality, the court merely stated that the claims did not fall within this court's judge-made narrow definition of which situations are eligible for coram nobis relief. After denying Mr. McArthur's ineffective assistance of counsel claim for that reason, the court stated:
McArthur's remaining claims include the following: that he was discriminated against because a second attorney had not been appointed to represent him in a capital case; that he was convicted of capital murder without being found guilty of the underlying felony; that he has been denied due process because there is no remedy in the State of Arkansas for an inmate who discovers new evidence after conviction that is not scientific in nature; and that he had been precluded from assisting his attorney in a meaningful way due to his being denied access to a McArthur v. State , 2017 Ark. 120, 515 S.W.3d 585. law library while in custody. These claims for relief are not cognizable in coram nobis proceedings
(Emphasis supplied.) McArthur v. State , 2017 Ark. 120, 515 S.W.3d 585. In truth, the majority of Mr. McArthur's claims await true resolution on the merits-not the application of a procedural bar. Therefore, I must dissent.
The order dismissing McArthur's habeas petition was entered April 6, 2018, and McArthur filed a motion for reconsideration on April 23, 2018. The circuit court denied the reconsideration motion on May 31, 2018, and McArthur filed a timely notice of appeal from this motion on June 15, 2018. McArthur's appeal therefore is timely pursuant to Arkansas Rule of Appellate Procedure-Criminal 2(a)(2) (2017).
The majority of these claims were raised in McArthur's pro se second petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis filed in this court, including the claims of innocence with the supporting affidavits. The claims were addressed and rejected. See McArthur v. State , 2017 Ark. 120, 515 S.W.3d 585 (per curiam).
Act 657 of 1995 amended the relevant statute to allow for separate convictions for both capital murder and the underlying felony.
The direct-appeal record demonstrates that the trial court gave the proper instruction in accordance with AMI Crim. 1501-A, that a finding of capital murder must be based on a determination that McArthur had committed the crime of robbery and that if the crime of robbery had not been proved then McArthur could not be found guilty of capital murder. McArthur , 2017 Ark. 120, at 10 n.3, 515 S.W.3d at 593 n.3. | [
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Michael McHenry, who works with the Arkansas State Police Crimes Against Children Division, testified without objection that he observed Lindsey Carter, a child advocate and forensic interviewer at the Children's Safety Center, conduct an interview with MO. MO disclosed the sexual assault during the interview and stated she had told Katrinda in March 2018 what Joseia was doing to her.
Still without objection, McHenry continued to testify regarding specific allegations MO had made during her interview. MO revealed that on at least two occasions Joseia told her to take off her clothes, rubbed her "boobs," and "put his thing" in her "bottom hole," which she clarified was her "butt." MO stated that on one occasion Joseia did not have anything on his penis, but nothing came out of his penis that time because the family returned to the house in "the middle of the incident." MO also disclosed that he had rubbed her vagina with his "thing" until white stuff came out.
MO also reported in the interview that Joseia had put his "thing" in her hole where she poops, that he used baby oil, and that he stopped when white stuff came out of his "thing." She said that Joseia would have her touch his "thing" and move her hand back and forth on it until white stuff came out, telling her to squeeze harder. Finally, MO reported in the interview that Joseia had shown her videos of a girl and a guy with their clothes off having sex. Joseia told her not to tell anyone what they were doing and that he was just teaching her things she needed to know when she got a boyfriend. She told the interviewer she was very scared to go home and did not want to be around Joseia or Katrinda.
McHenry then testified that his investigation resulted in a true finding against Joseia on MO's allegations of sexual abuse. He explained that Joseia and Katrinda were interviewed by another detective and that Joseia denied the allegations and described MO as a liar. McHenry did not witness those interviews but read or was told about them as part of his investigation.
McHenry acknowledged that the Washington County Prosecutor's Office declined to pursue charges. He further stated he had made a true finding against JL regarding MO's allegations that he, too, had sexually abused her, but he was not aware the finding was found to be unsubstantiated by the administrative law judge. McHenry was also aware MO was temporarily placed with two school teachers but had no knowledge of MO's accusing one of the teachers of sexual abuse or that she had accused another caretaker of sexual abuse.
The defense then presented its case, beginning with Katrinda's testimony. Katrinda acknowledged MO told her one time that Joseia was sexually abusing her, but she did not believe MO. Joseia denied it when Katrinda asked him about it, and Katrinda believed Joseia. Katrinda stated that MO had told lies since she was very little. Katrinda further testified that MO got a check each month for mental disability and was in special education at school. She stated kids at school did not like MO and that she stole things. Katrinda reported that MO was raped by an unknown assailant when she was about six years old and that MO had accused her "uncle" of sexually abusing her. She said she did not think it would be good for MO to return home because MO had said things that were not true.
Joseia testified that he and Katrinda had custody of MO and RO. He denied MO's allegations of abuse and believed she was lying because she wanted to live with her father. Joseia explained how upset he had been about the allegations.
Following the hearing, the trial court concluded MO was dependent-neglected and specifically found that MO "disclosed facts that would not be known to a child of this age, especially if she was delayed, about white stuff coming out of the penis" and other vivid details.
Counsel for Joseia candidly acknowledges trial counsel did not raise a hearsay objection (1) when O'Malley testified about the things that were reported to her concerning MO's sexual-abuse allegations; (2) when O'Malley's record of the medical examination she performed on MO was introduced as State's exhibit No. 5; and (3) when McHenry testified about what he had heard MO say in the forensic interview he observed. Counsel further acknowledges that because the hearsay issue was not raised below, it was not preserved for this court to address on appeal.
Evidence admitted without objection may constitute substantial evidence. See, e.g. , Jones v. State , 332 Ark. 617, 967 S.W.2d 559 (1998) ; Moseby v. State , 2010 Ark. App. 5, 2010 WL 26392. Acknowledging that he is precluded from raising the hearsay objections for the first time on appeal, Joseia's counsel nevertheless extrapolates from Cochran v. Arkansas Department of Human Services , 43 Ark. App. 116, 860 S.W.2d 748 (1993), arguing that the trial court could not adequately judge MO's credibility based on hearsay. In other words, counsel contends the trial court cannot resolve credibility issues by crediting "testimony" from an absent victim, MO, over other inconsistent evidence such as Joseia's denial, Katrinda's testimony about MO's history of lying and making other sexual-abuse allegations, and the results of the sex-abuse examination showing normal findings. Counsel asserts that the burden of proof was on DHS and that DHS did not make MO available for cross-examination to aid in the trial court's credibility determination. Counsel concludes by arguing that the trial court's credibility determination was therefore void of substance, rendering it clearly erroneous. We are not persuaded.
DHS was not required to call witnesses that parents' counsel might want to cross-examine in order to demonstrate credibility and meet its burden of proof. See Ark. Dep't of Human Servs. v. A.B. , 374 Ark. 193, 286 S.W.3d 712 (2008). Here, because there were no hearsay objections or objections of any other kind, the trial court had before it the following evidence: testimony from a sexual-assault nurse detailing a report she received from the Children's Advocacy Center about MO's statements regarding sexual abuse; the record of the nurse's medical examination of MO (State's exhibit No. 5), which included the reports she received of the alleged abuse; the nurse's expert opinion that the absence of physical findings did not negate sexual contact; and McHenry's testimony about the specific allegations of sexual abuse MO made during her interview with Lindsey Carter. The trial court weighed the evidence presented by DHS against other conflicting evidence and concluded Joseia had sexually abused MO. We defer to the trial court's superior position, ability, and opportunity to observe witnesses and judge credibility, especially in cases involving minor children. See, e.g. , Carrillo v. Ibarra , 2019 Ark. App. 189, 575 S.W.3d 151. The evidence presented, without objection, supports the trial court's finding that MO was dependent-neglected based on its determination that Joseia had sexually abused MO. We are not left with a definite and firm conviction that the trial court made a mistake in so finding and therefore affirm.
Affirmed.
Gladwin and Hixson, JJ., agree. | [
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MIKE MURPHY, Judge
Ruby Fisher appeals the May 25, 2018, order of the Saline County Circuit Court quieting title in certain property to the appellees, Veneine and Dannie Cuningkin. We are unable to reach the merits of the case at this time, and we dismiss the appeal without prejudice.
This appeal must be dismissed for two reasons, but some background is necessary to understand both points.
The property at issue in this case consists of two lots within the D.S. Moore Addition to the City of Benton, Saline County, Arkansas. The original plat for the neighborhood was filed in 1901, but the neighborhood that exists today does not match that plat. The streets do not match and the lot numbers as they exist on the plat do not line up with the lots as they really exist. This confuses the dispute between the parties and, in a way, touches on the issues of finality.
In 2015, Fisher sued the Cuningkins for trespass and ejectment, claiming that the Cuningkins were using her land ("lots 5 and 6") without permission. The Cuningkins answered and counterclaimed for a quiet-title order, asserting that they were instead in possession only of land to which they held valid title by deed ("lots 1 and 2"). The Cuningkins essentially argued that Fisher was mistaken as to the location of her property, which the Cuningkins claimed was actually north of their land. Fisher then amended her complaint to add a claim for title by adverse possession to the disputed land, i.e., that which the Cuningkins referred to as Lots 1 and 2. In other words, indications are that the parties are arguing over what is probably the same plot of ground, though they at times refer to it by the lot numbers that correspond to their respective deeds.
At trial, the court heard testimony from the parties that Fisher and her siblings grew up in a house that was on the contested property but that it burned down in the 1990s. The remnants of the old house can still be found on the contested property. Fisher has paid taxes on the land and has a redemption deed for lots 5 and 6 from the state commissioner's office. The Cuningkins did not disagree with Fisher on any of these points, but they asserted that when they purchased lots 1 and 2 by quitclaim deed in 2007, they acquired title to the land that the house previously sat on.
The court also heard testimony from Jane Craig, an employee with the Saline County Assessor's Office, who works in the Geographic Information System department and is familiar with the neighborhood; and from Aaron Rasburry, the Saline County land surveyor. Craig testified that the D.S. Moore Addition plat does not match the placement of the lots today. She said there was no legal description in 1901 (when it was platted), the descriptions are vague, it is not easy to tell where the actual boundaries are, and she cannot identify what is or is not accurate in the subdivision. Likewise, Rasburry testified that he was unable to make an accurate survey because there were conflicting elements in the 1901 deed, the streets are not constructed as platted, and he could not "find Lots 1 and 2 on the ground." He stated that it could very well be that none of the residents of that neighborhood are living on their deeded lots.
At the conclusion of the hearing, the circuit court found that the Cuningkins own "lots 1 and 2." It quieted title in them. It further found that Fisher owns "lots 5 and 6." Notably, the court did not adopt any survey, identify any boundary lines, or otherwise identify where lots 1, 2, 5, or 6 are. Fisher appealed, arguing that the court erred in quieting title in the Cuningkins because they did not comply with the notice requirement for quieting title under Arkansas Code Annotated section 18-60-506 and because they did not sufficiently prove color of title to the property at issue.
As previously mentioned, however, we cannot address the merits of Fisher's arguments at this time. Under Arkansas Rule of Appellate Procedure-Civil 2(a)(1), an appeal may be taken from a final decree entered by the circuit court. This portion of Rule 2 has been interpreted to mean that for an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Ford Motor Co. v. Harper , 353 Ark. 328, 107 S.W.3d 168 (2003). The order must not only decide the rights of the parties, but also put the court's directive into execution, ending the litigation or a separable part of it. Id.
In a long line of cases, Arkansas courts have held that a circuit court's decree must describe the boundary line between disputing land owners with sufficient specificity that it may be identified solely by reference to the decree. See, e.g. , Petrus v. Nature Conservancy , 330 Ark. 722, 957 S.W.2d 688 (1997) ; Riddick v. Streett , 313 Ark. 706, 858 S.W.2d 62 (1993) (holding that the appointment of a surveyor and a replatting of the entire subdivision was only means of removing cloud on title created by flawed plat and bills of assurance); Greenway Land Co. v. Hinchey , 2010 Ark. App. 330, at 2, 2010 WL 1487291 ; Penland v. Johnston , 97 Ark. App. 11, at 13-14, 242 S.W.3d 635, 636-37 (2006). The decree itself must describe the boundary line, and it must be done without reference to a plat that may not be in existence in a few years. Riddick , 313 Ark. at 712, 858 S.W.2d at 64. As our supreme court established in Petrus , "leaving those lines to be established by a future survey may likely result in additional disputes, litigation, and appeals." 330 Ark. at 726, 957 S.W.2d at 690.
Here, while not exactly a boundary-line dispute, as it stands, the current order invites future litigation. It was undisputed that Fisher held a deed to some property identified as "lots 5 and 6" and that the Cuningkins held a deed to some property identified as "lots 1 and 2." It was further undisputed that the neighborhood does not follow the subdivision plat. And yet, the court referred to lot numbers from that very same plat to resolve a dispute in which two parties are claiming ownership of the same plot of ground. The decree does not resolve this dispute with specificity sufficient to identify the property or the parties' title.
Granted, there is a line of cases in which, despite an order's deficient property description, the appellate court has decided the merits and then remanded for the inclusion of a more specific legal description in the order. See, e.g. , Greenway Land Co. v. Hinchey , 2010 Ark. App. 330, 2, 2010 WL 1487291 (per curiam) (collecting cases). But the legal descriptions in the orders in those cases were more readily established than in this case, and most referenced an already-performed survey. See, e.g. , id. Unlike in Petrus , remand was appropriate in those cases because there was nothing left to do-the circuit court merely needed to tweak the decree to reflect the existing record. Id. This case is like Petrus : the current legal description is inadequate, and it therefore does not resolve this dispute sufficient to avert additional disputes, litigation, and appeals.
The second reason the order appealed was not final is because it did not fully resolve Fisher's adverse-possession claim to the property claimed by the Cuningkins. Our supreme court imposes a strict requirement that in order to achieve finality for purposes of appeal, the circuit court must dismiss or adjudicate by written order all the claims filed in a lawsuit-even when it appears that the court's order necessarily rendered an outstanding claim moot or impliedly dismissed it. King v. Jackson , 2013 Ark. App. 264, at 2, 2013 WL 1775731.
Finally, as a matter of housekeeping, we would like to note that the Cuningkin's trial exhibit 3 is missing from the record and the addendum. Counsel are encouraged to review Rule 4-2 in its entirety as it relates to the abstract and addendum, as well as the entire record, to ensure that no additional deficiencies are present in the event that this case returns to us on a future appeal.
Dismissed without prejudice.
Gruber, C.J., and Klappenbach, J., agree.
Fisher's notice of appeal does not contain a statement that she has abandoned any pending but unresolved claims pursuant to Arkansas Rule of Appellate Procedure-Civil 3(e)(vi). | [
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N. MARK KLAPPENBACH, Judge
Appellant Charles Joslin appeals the October 2018 order of the Crawford County Circuit Court that terminated his parental rights to his three daughters, KJ (born in 2002), AJ (born in 2004), and EJ (born in 2006). Joslin does not challenge the circuit court's finding that the Department of Human Services (DHS) proved multiple statutory grounds on which to terminate his parental rights. On appeal, Joslin challenges (1) the circuit court's finding that termination of his parental rights was in the children's best interest and (2) the circuit court's evidentiary ruling that Joslin would not be permitted to call EJ as a witness during the termination-of-parental-rights hearing. We affirm.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3) (Supp. 2017), an order forever terminating parental rights shall be based on a finding by clear and convincing evidence that (1) there are one or more statutory grounds and (2) it is in the best interest of the juvenile, including consideration of the likelihood that the juvenile will be adopted and the potential harm to the health and safety of the child if returned to the custody of the parent. We review termination-of-parental-rights orders de novo but will not reverse the circuit court's findings of fact unless they are clearly erroneous.
Harjo v. Ark. Dep't of Human Servs. , 2018 Ark. App. 268, 548 S.W.3d 865. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We must defer to the superior position of the circuit court to weigh the credibility of the witnesses. Ewasiuk v. Ark. Dep't of Human Servs. , 2018 Ark. App. 59, 540 S.W.3d 318. On appellate review, this court gives a high degree of deference to the circuit court, which is in a far superior position to observe the parties before it. Id. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.
In this case, the circuit court found that there were multiple statutory grounds on which to terminate Joslin's parental rights, which Joslin does not challenge on appeal. The circuit court also found that it was in these children's best interest to terminate parental rights. Under the umbrella of the children's best interest, the circuit court specifically considered that the girls were adoptable and found that there was potential harm to the girls if their father was given custody. Joslin concedes that the circuit court technically complied with the mandate to consider these two best-interest factors. Joslin argues, however, that the overall evidence does not support that it is in the best interest of these girls to terminate their father's rights and extinguish the familial relationships. This, he argues, goes against the statutory purpose in the Juvenile Code to "preserve and strengthen the juvenile's family ties when it is in the best interest of the juvenile" to do so. Ark. Code Ann. § 9-27-302(2)(A) (Repl. 2015). We are not left with a distinct and firm impression that the circuit court made a mistake in its findings on the children's best interest.
KJ, AJ, and EJ went into DHS custody after Joslin's arrest in May 2017 for domestic battery, domestic assault, public intoxication, and interfering with emergency communications. He was arrested because he hit all the girls, and he dragged KJ on the floor by the hoodie she was wearing, which choked KJ. Joslin had custody of AJ and EJ, so DHS took emergency custody of those two children. Joslin's ex-wife had custody of KJ, but DHS took emergency custody of KJ in June 2017 because the mother was using drugs, she left KJ with improper supervision, and the home was in squalor. In July 2017, the paternal grandmother petitioned to intervene, asserting she had been CJ's primary caretaker for most of CJ's life, that her parents had a very limited relationship with CJ, and that CJ should stay in the only home she had ever known.
KJ was placed in the foster care of Glen Jorgensen and his wife, EJ was placed with her maternal aunt Janice Stanier, and AJ was placed sometimes with the Jorgensens and sometimes in a sub-acute therapeutic facility. Over the next year, Joslin was provided reunification services. Among other things, Joslin was ordered to clear up his legal issues, attend parenting and anger-management classes, go to drug rehabilitation, provide child support, attend supervised visits, and cooperate with DHS.
By May 2018, it was apparent that the mother was not going to try to reunify with the girls, and Joslin had made minimal progress. In the May 2018 permanency-planning hearing, the circuit court authorized DHS to file a petition to terminate parental rights, and it set a concurrent goal of permanent placement with a fit and willing relative and guardianship for one or more of the children. The circuit court found that Joslin was not making progress; he continued to show inappropriate parenting techniques when he visited his children; he was discharged from an inpatient treatment facility after an altercation with another resident; he failed to contact DHS after his discharge to reinstate a visitation schedule; he did not submit to drug screens; he did not have stable housing or a stable job; he had been incarcerated multiple times; and he was uncooperative with DHS.
In June 2018, DHS filed its petition to terminate parental rights. The initial September 2018 setting for the termination hearing was continued for three weeks at Joslin's request so that he could complete a different drug-rehabilitation program. The hearing was conducted approximately sixteen months after the girls had been taken into DHS custody.
Joslin was still in drug rehabilitation; he had no home; he had been in jail multiple times over the course of this case; he pleaded guilty to domestic battery of KJ and to violating his ex-wife's no-contact order. Joslin agreed that he had not completed an array of the court's requirements, including domestic-violence classes, drug rehabilitation, or parenting classes. Joslin said that his drug of choice was opiate pills, but he had not used drugs for six weeks. He had attended some therapy and had begun taking an antidepressant and anti-anxiety medication, but he acknowledged that controlling his anger had been a big issue for him. Joslin is a carpenter and believed that he could always find employment. Joslin testified that his girls have a close relationship with his mother and their younger sister CJ.
Joslin's rehabilitation-facility case manager testified that Joslin had been in his facility for about three weeks and had embraced his treatment plan. The case manager expected him to complete the program and then move into a sober environment, hopefully continuing with outpatient therapy.
The caseworker testified that Joslin had been kicked out of drug rehabilitation twice before starting his most recent attempt. His biggest big concerns about Joslin were his aggression, domestic violence, anger issues, and drug use, but Joslin had not completed any services nor did he have a job or home. The caseworker believed all the girls were adoptable with no barriers to adoption, but he said that AJ would continue to need mental-health care. He thought that the Jorgensens and the aunt were interested in adopting the children. With Joslin having failed to complete any services, DHS wanted to give the girls a chance at permanency.
Joslin wanted to call EJ as a witness to establish that she was bonded to her little sister and to her extended biological family. According to the attorney ad litem, the children did not want to testify, and the circuit court disallowed Joslin from calling EJ to the stand. KJ's foster father testified, however, that EJ came to visit her sisters at his house, the sisters went to see EJ at her aunt's house, the sisters sometimes walked to their grandmother's house to see CJ, and he had all the girls at his house for four days over the summer. KJ's foster father intended to continue to allow them to see each other and maintain their bonds with each other. EJ's aunt, who had fostered EJ the entire DHS case, testified that EJ still wanted a relationship with her father and mother.
Joslin's attorney argued that although Joslin was not quite ready to have his daughters back, he would be ready within a few months. DHS and the attorney ad litem were against continuing this case after sixteen months because the girls needed permanency. The circuit court terminated Joslin's parental rights.
Joslin argues on appeal that the circuit court erred in finding termination of his parental rights to be in these children's best interest. Joslin contends that he made progress in his mental health, he had almost completed drug rehabilitation, EJ and KJ wanted to maintain a relationship with him, the girls had significant family bonds with their blood relatives, and he could provide financial support to the girls. Joslin asserts that there were less drastic options, such as permanent custody or guardianships, that would better serve these girls and preserve the family relationships.
Citing Caldwell v. Arkansas Department of Human Services , 2010 Ark. App. 102, 2010 WL 374432, and Lively v. Arkansas Department of Human Services , 2015 Ark. App. 131, 456 S.W.3d 383, Joslin contends that the best-interest analysis cannot be addressed without fully considering the relative-placement issue. In Caldwell and Lively , termination was not in those children's best interest because the other biological parent had custody, so termination of the non-custodial parent's rights would not achieve permanency for the children. In contrast, this case is a two-parent termination case, so Joslin's argument is misplaced. See also Heath v. Ark. Dep't of Human Servs. , 2019 Ark. App. 255, 576 S.W.3d 86 ; Fisher v. Ark. Dep't of Human Servs. , 2019 Ark. App. 39, 569 S.W.3d 886.
Furthermore, the children are still in the custody of DHS, not relatives. EJ was placed with her maternal aunt by DHS, and the mother's parental rights have already been terminated, legally severing that familial bond. AJ was not placed with family. KJ was placed with Jorgensen, who is a former employer of Joslin. None of these placement options are with legal relatives. See Scrivner v. Ark. Dep't of Human Servs. , 2016 Ark. App. 316, 497 S.W.3d 206.
On de novo review of this record, we cannot say that the circuit court clearly erred. The purpose of the termination-of-parental-rights statute, Ark. Code Ann. § 9-27-341(a)(3), is to provide permanency in a juvenile's life in all instances in which the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile's perspective.
Joslin's inability or unwillingness to get his emotional, mental, criminal, and drug issues in check within a reasonable time support the trial court's finding that termination was in these children's best interest. Joslin failed to complete the steps necessary to reach the case-plan goals that were intended to help him become the safe, stable parent that these children needed. A parent's past behavior is often a good indicator of future behavior. Ewasiuk, supra. The mother's parental rights have been extinguished. The current caregivers have expressed an interest in adopting the girls, which cannot be achieved absent termination of Joslin's parental rights. Given the deference we give to the circuit court to evaluate the evidence, the testimony, and the best interest of children, we hold that the circuit court did not clearly err in its best-interest finding as to KJ, AJ, and EJ.
Joslin's other argument on appeal is that the circuit court abused its discretion by not permitting him to call EJ as a witness so that she could explain her attachment to her paternal grandmother, her little sister CJ, and to members of her mother's family. Joslin wanted to demonstrate that preserving those familial bonds was in the girls' best interest. The attorney ad litem objected because EJ did not want to testify but offered to stipulate that the girls love Joslin and were interested in some sort of ongoing family contact. The attorney ad litem added that other witnesses were available to discuss ongoing family contact. The circuit court ruled that EJ would not be called to testify.
Although the children's attorney asserts to us that Joslin's argument is not preserved for failure to proffer EJ's testimony, we disagree. The circuit court specifically asked Joslin's counsel to provide an offer of proof, and counsel proffered the content of EJ's expected testimony. See Brown v. Ark. Dep't of Human Servs. , 2017 Ark. App. 67, 511 S.W.3d 895 ; Swinford v. State , 85 Ark. App. 326, 154 S.W.3d 262 (2004).
Moving to the merits, we review a circuit court's ruling on admissibility of evidence under a manifest-abuse-of-discretion standard. Olivares v. Ark. Dep't of Human Servs. , 2013 Ark. App. 94, 2013 WL 543325. Even if there is judicial error in an evidentiary ruling, we will not reverse unless the appellant demonstrates prejudice. Hooks v. Ark. Dep't of Human Servs. , 2017 Ark. App. 687, 536 S.W.3d 666. Joslin fails to demonstrate reversible error.
The stipulations offered by the attorney ad litem and the testimony of Jorgensen, Stanier, and Joslin himself adequately covered the testimony expected from EJ. Exclusion of evidence is not prejudicial if the same evidence was introduced through another source and was before the trier of fact for its consideration. Howard v. Ark. Dep't of Human Servs. , 2017 Ark. App. 68, 512 S.W.3d 676. It was undisputed that the girls wanted to maintain family contact. EJ's testimony would have been cumulative, so no prejudice resulted from excluding EJ's testimony.
We affirm the termination of Joslin's parental rights.
Affirmed.
Whiteaker and Vaught, JJ., agree.
Joslin's youngest daughter, CJ (born in 2012), was initially a part of this DHS case. The circuit court granted permanent custody of CJ to the paternal grandmother and closed the case as to CJ, so CJ is not a party to this appeal. Rebecca Joslin, the biological mother, did not meaningfully participate in this DHS case, so her parental rights were terminated; she did not appeal.
Those grounds included (1) twelve months out of the home and failure to remedy, (2) willful failure to provide support or maintain contact, (3) abandonment, (4) physical abuse, (5) subsequent other factors, and (6) aggravated circumstances, meaning little likelihood of reunification with additional services. See Ark. Code Ann. § 9-27-341(a)(3)(B) (Supp. 2017).
These allegations were deemed true at the July 2017 adjudication hearing. Joslin later pleaded guilty to domestic battery.
The circuit court permitted intervention, and by October 2017, the grandmother was granted permanent custody of CJ. | [
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RITA W. GRUBER, Chief Judge
Appellant Jonathan Tomes appeals from an order of the Crawford County Circuit Court revoking his probation. On appeal, appellant argues that the evidence is insufficient to support the revocation because there was no evidence that appellant "absconded" or that doing so violated the terms and conditions of his probationary sentence. We agree; therefore, we reverse and dismiss.
The State filed an amended information on July 8, 2013, charging appellant with delivery of hydrocodone under Ark. Code Ann. § 5-64-426(c)(1) ; appellant was also charged as a habitual offender under Ark. Code Ann. § 5-4-501. On January 29, 2014, appellant entered a negotiated plea of guilty to delivery of hydrocodone and was sentenced to sixty months' probation. The sentencing order was entered February 21, 2014.
On March 27, 2018, the State filed a petition to revoke/show cause, which provided in pertinent part:
That on the 29th day of January, 2014, the Defendant appeared in Open Court with his attorney, Joshua Bugeja, and entered a plea of guilty to the offense of Delivery of Hydrocodone (5-64-426) Class "C" Felony. The Court placed the Defendant under the supervision of the Adult Probation Office for a period of five (5) years and was ordered to abide by the rules and regulations set out by that office including paying a $ 35.00 monthly probation fee beginning February 1, 2014. The Defendant was ordered to pay $ 1,500.00 Drug Court Treatment fee, $ 1500.00 in restitution, $ 150.00 court costs, $ 250.00 DNA fee, $ 125.00 DFT fee, $ 100.00 Public Defender fee, $ 20.00 booking fee and monthly administrative fees payable at the rate of $ 55.00 per month beginning March 1, 2014 to be paid to the Crawford County Prosecuting Attorney's Office.
That Arkansas Code Annotated 16-93-311[ ] states:
(f) "... if the Court has suspended the imposition of sentence or placed a defendant on probation conditioned upon him making restitution or reparation and the defendant has not satisfactorily made all his payments when the probationary period has ended the Court shall have the authority to continue to assert its jurisdiction over the recalcitrant defendant and extend the probation period as it deems necessary or revoke the defendant's suspended sentence."
That as of this 27th day of March, 2018, the Defendant has failed to comply with the rules and regulations of his probation by absconding; that said conduct is in violation of the terms and conditions of his probation.
At the revocation hearing on June 6, 2018, Taylor Pippin, a parole-probation officer, testified that he was overseeing appellant's probation for another officer who left, but the case had not "technically" been assigned to him. There had been five officers previously assigned. Pippin did not generate any of the alleged violations and had only been asked to testify the week of the hearing. Pippin said that appellant was turned in for absconding in March 2018; appellant's whereabouts were listed as unknown.
At this point in Pippin's testimony, appellant's counsel objected, stating that the State filed its petition to revoke on the ground that appellant absconded, which is a term of law memorialized in Ark. Code Ann. § 5-54-131. The State interrupted, explaining that " '[a]bsconding' is a term for probation and parole, not a statutory term, a violation of the term and condition of probation and parole." The State indicated it was not alleging statutory absconding. At the circuit court's direction, appellant's counsel asked Pippin the meaning of "absconding." Pippin testified that "[i]t means you leave a residence that we approved you to stay at, or you don't report as directed or a combination of both or leave your assigned county." The court overruled appellant's objection.
Pippin testified that there were three violations contained in appellant's probation record: (1) failure to report within twenty-four hours after his release from incarceration in July 2016; (2) failure to report in May 2017; and (3) an attempted home visit on January 26, 2018, which revealed that appellant no longer lived at the address according to the property manager. Pippin stated that there had been no contact with appellant since January 2018 and that no updated address was provided by appellant.
After the State rested, appellant's counsel moved to dismiss, arguing that the State failed to make a prima facie case that appellant violated the terms and conditions of his probation. Specifically, counsel argued that there had been no evidence submitted that reporting was a term and condition of appellant's probation. Counsel stated that the basis for the petition to revoke was that appellant "absconded," which is a term of art meaning that a court has either ordered a person to live somewhere or that a court or a sheriff has ordered a person to wear an ankle monitor.
Counsel argued that the State's case lacked testimony of either situation.
The State responded that the petition to revoke was clear that appellant had violated the terms and conditions by absconding from probation and that there was testimony that he was not present at the last home visit on January 26, 2018.
The court noted that absconding, as used in the petition to revoke, was not in reference to a specific statute. As such, the court denied the motion: "What's been shown to me as absconding is used within the confines in this, not as the Statutory Absconding, but as term of reference by the probation department as to someone who no longer has contact with them." The court found by a preponderance of the evidence that appellant "failed to report an address change and failed to abide by the terms and conditions of probation by failing to report to probation for a period of over a year with no ability of the probation department to contact him[.]" Appellant's probation was revoked, and he was sentenced to seven years' imprisonment in the Arkansas Department of Correction. This timely appeal followed.
In order to revoke a probation or a suspended imposition of sentence, the circuit court must find by a preponderance of the evidence that the defendant has inexcusably violated a condition of the probation or suspension. Vangilder v. State , 2018 Ark. App. 384, at 4, 556 S.W.3d 534, 537. To sustain a revocation, the State need only show that the defendant committed one violation. Id. We will not reverse the circuit court's findings unless they are clearly against the preponderance of the evidence. Id. Whether a preponderance of the evidence exists turns on questions of credibility and weight to be given to the testimony. Id.
Appellant makes two arguments for reversal: (1) the evidence is insufficient to support the revocation because there was no evidence that he "absconded" or that doing so violated the terms and conditions of his probation and (2) the State's failure to introduce the terms and conditions or have the court take judicial notice of the terms and conditions should be considered a failure of proof in itself.
The petition to revoke alleged that appellant absconded. The court, in its oral ruling, stated that absconding in this case was not statutory absconding, but "a term of reference by the probation department as to someone who no longer has contact with them." The "Plea Agreement Conditions for Suspended Sentence" filed January 29, 2014, provided that appellant was sentenced to five years' probation and ordered him to pay numerous fees. The conditions further provided:
IT IS HEREBY ORDERED that the following conditions of said suspension are imposed upon the defendant:
1. You must not commit a criminal offense punishable by imprisonment.
2. You must not drink or possess intoxicating or alcoholic beverages, or be present in any such establishment where its main source of income is derived from the sale of such beverages.
3. You must not use, sell distribute, or possess any controlled substance, or associate with any person who is participating in or is known to participate in the illegal use, sale distribution or possession of controlled substances, or be present in places where such persons congregate. You may use or possess controlled substances pursuant to a legitimate prescription from a physician. You must be able to present proof of your prescription and provide physician's name as requested.
4. You must not associate with persons who have been convicted of felonies, persons who are engaged in criminal activity.
5. You must no[t] purchase, own, control or possess any firearm or other prohibited deadly weapon at any time, or be in the company of any person possessing the same.
6. You must be gainfully employed or enrolled as a student at all times, pay your share of household expenses, support your legal dependents and pay all court ordered child support.
7. You must comply with the special conditions imposed by the court.
8. If the Court revokes your suspension or probation for violating a condition, it may impose on you a sentence of up to 10 years in the Arkansas Department of Correction and/or a fine of up to $ _______.
The only special condition imposed was for appellant to submit to DNA testing. None of these conditions involved reporting requirements-no requirement to report to a probation officer or to report a change of address.
The State argues that appellant's challenge is to the circuit court's knowledge of the terms and conditions and, further, that the circuit court is presumed to know the law and that under Ark. Code Ann. § 16-93-306(b)(4) (Supp. 2017), a probation officer shall "[s]tay informed of the probationer's conduct and condition through visitation, required reporting, or other methods, and report to the sentencing court of that information upon request[.]" However, Ark. Code Ann. § 5-4-303(d) (Supp. 2017), does not mandate reporting. Subsection (d) provides:
If the court places a defendant on probation, as a condition of its order the court may require that the defendant:
(1) Report as directed to the court or the probation officer and permit the probation officer to visit the defendant at the defendant's place of employment or elsewhere;
(2) Remain within the jurisdiction of the court unless granted permission to leave in a written statement by the court or the probation officer; and
(3) Answer any reasonable inquiry by the court or the probation officer and promptly notify the court or probation officer of any change in address or employment.
In order to revoke probation, the circuit court must find that the defendant violated a written condition of his or her probation. Harris v. State , 98 Ark. App. 264, 270, 254 S.W.3d 789, 794 (2007). Absconding is not a written condition of appellant's probation. Even considering the circuit court's interpretation of absconding-as a term of reference by the probation department for someone who no longer has contact with it-there is nothing in the conditions requiring appellant to report or to notify of a change of address. Because the circuit court based its revocation of appellant's probation on a violation that was not a written condition of his probation, we reverse and dismiss.
Because we reverse on the sufficiency of the evidence to support the revocation, we need not address appellant's remaining argument.
Reversed and dismissed.
Abramson and Harrison, JJ., agree.
This is the second time this case has been before us. In Tomes v. State , 2019 Ark. App. 103, 2019 WL 693717, we remanded to settle and supplement the record to include what appeared to be a missing document that was referenced on the docket sheet. When the supplemented record was filed, it contained an affidavit of the circuit clerk indicating that the docket entry was only a statistical code and no document was associated with the entry.
The habitual-offender charge was dismissed.
This code section is correct and does contain this language, but there is no subsection (f).
The terms and conditions were not part of the record when it was originally lodged. A supplemental record, filed by stipulation of the parties, contained a certified copy of the terms and conditions. The stipulation indicated that the document was contained in the circuit clerk's file but not in the record on appeal.
There was another document, which followed the 2014 sentencing order, entitled "ADDITIONAL TERMS/CONDITIONS OF DISPOSITION." None of the items on this document, which was not signed by appellant, indicated any reporting requirements. | [
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N. MARK KLAPPENBACH, Judge
The White County Judge and the Association of Arkansas Counties Risk Management Services appeal from a decision of the Arkansas Workers' Compensation Commission (Commission) awarding Bruce Menser reasonable and necessary medical treatment. Appellants contend that Menser's claim is barred by the statute of limitations and that substantial evidence does not support a finding that his injuries are compensable. We reverse and remand.
Menser was working as a patrol deputy for the White County Sheriff's Office on December 16, 2013, when he alleges he was injured due to exposure to fumes from his patrol car's battery. Appellants initially accepted the injury as compensable and paid benefits but later controverted it in its entirety. A hearing was held before the administrative law judge (ALJ) in April 2017 on the issues of the statute of limitations, compensability, and reasonable and necessary medical treatment; other issues were reserved. Menser presented evidence that the battery in his patrol car exploded on the night in question and that the exposure to fumes inside the car caused a myriad of injuries. He was eventually treated by Dr. David Silas, a neurologist, who diagnosed him with a seizure disorder and neuropathy. Dr. Silas opined that Menser's conditions were caused by his inhalation of the battery fumes. Appellants submitted the report of Dr. Henry Simmons, who opined after reviewing Menser's medical records and deposition that Menser had not suffered a toxicological injury.
The Commission, which affirmed and adopted the decision of the ALJ, found that Menser's claim was not barred by the statute of limitations, that he had sustained compensable injuries in the form of a brain injury and neuropathy, and that he was entitled to reasonable and necessary medical treatment for these injuries. The Commission found that he had not proved compensable injuries with regard to the evidence of fibromyalgia, joint pain, a pulmonary injury, anxiety, or memory loss and confusion.
We first address appellants' contention that Menser's claim is barred by the statute of limitations. When reviewing decisions from the Commission, this court views the evidence and all reasonable inferences therefrom in the light most favorable to the Commission's findings and will affirm the decision if the findings are supported by substantial evidence. Barnes v. Fort Smith Pub. Schs. , 95 Ark. App. 248, 235 S.W.3d 905 (2006). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
The issue is whether Menser timely filed a claim for additional medical benefits. It is the claimant's burden to prove that he or she acted within the time allowed for filing a claim for additional compensation. Stewart v. Ark. Glass Container , 2010 Ark. 198, 366 S.W.3d 358. Arkansas Code Annotated section 11-9-702 sets forth the following limitations:
(b) Time for filing additional compensation.
(1) In cases in which any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation or two (2) years from the date of the injury, whichever is greater.
....
(c) A claim for additional compensation must specifically state that it is a claim for additional compensation. Documents which do not specifically request additional benefits shall not be considered a claim for additional compensation.
Ark. Code Ann. § 11-9-702(b)(1), (c) (Repl. 2012).
The Commission determined, and the parties do not dispute, that the relevant date was December 16, 2015-two years from the date of Menser's injury. The Commission found that, although Menser had never filed a claim via a Form AR-C, he had filed a document that was sufficient to constitute a claim for additional benefits. This document, a letter from Menser's counsel at the time, was filed with the Commission on July 11, 2014. The letter provided Menser's name, the name of his employer, and the file number for his case, and stated as follows: "Please set this case for a hearing on medical benefits and TTD. I am reserving the issue of PTD." The parties filed prehearing questionnaires in August 2014, and a prehearing telephone conference was held in September 2014. Pursuant to the prehearing order, a hearing was set for November 17, 2014, and the issues to be presented included compensability and medical benefits. Following a second prehearing telephone conference, the scheduled hearing was canceled by agreement of the parties because discovery was not complete. In late 2016, Menser's current counsel requested a hearing on Menser's claim. The Commission found that the claim had been pending-and the running of the statute of limitations had been tolled-since July 11, 2014; thus, the claim was not time-barred.
Appellants argue, as they did below, that the July 2014 letter does not constitute a claim for additional benefits under Arkansas Code Annotated section 11-9-702(c) because it does not specifically state that Menser was requesting "additional benefits." The Commission's opinion, however, does not cite Arkansas Code Annotated section 11-9-702(c). Instead, the Commission relied on a prior Commission opinion that analyzed the requirements to constitute a claim for additional benefits pursuant to Cook v. Southwestern Bell Telephone Company , 21 Ark. App. 29, 727 S.W.2d 862 (1987). That Commission opinion stated, in part, that "we have interpreted Cook as requiring that correspondence intended as a claim for additional benefits (1) identify the claimant, (2) indicate that a compensable injury has occurred, and (3) convey the idea that compensation is expected." The Commission here concluded that the July 2014 letter was sufficient under this standard. As the supreme court has noted, however, opinions governed by the pre-Act 796 of 1993 version of the Workers' Compensation Act are no longer controlling regarding the requirements to constitute a claim for additional compensation because prior to the 1993 amendments, Arkansas Code Annotated section 11-9-702 did not contain the present subsection (c). See Stewart , 2010 Ark. 198, at 8 n.2, 366 S.W.3d at 362 n.2.
By relying on the standards set forth in Cook , and failing to consider section 11-9-702(c), the Commission here has applied the wrong legal standard. Further, the Commission erroneously stated that appellants had the burden of proving the claim was time-barred. As stated above, it is the claimant's burden to prove that a claim is timely filed. Stewart , supra. Because the Commission failed to apply the correct legal standard, we reverse the Commission's decision and remand for further action consistent with this opinion.
Reversed and remanded.
Virden and Harrison, JJ., agree. | [
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LARRY D. VAUGHT, Judge
On November 10 and 24, 2015, law-enforcement officers worked with two confidential informants to purchase methamphetamine from appellant Kwasi McKinney at his residence located at 202 Mulberry in McNeil, Arkansas. Thereafter, on January 28, 2016, pursuant to a search warrant, law-enforcement officers searched McKinney's home and found methamphetamine, drug paraphernalia, and a firearm. On November 29, 2016, a Columbia County jury found McKinney guilty of delivery of methamphetamine, possession of methamphetamine, maintaining a drug premises, simultaneous possession of drugs and a firearm, possession of methamphetamine with intent to deliver, and possession of a firearm by certain persons. He was sentenced to serve twenty-eight years', six years', eighteen years', sixty years', thirty years', and twelve years' imprisonment, respectively, to be run consecutively, for a total of 154 years. On appeal, McKinney contends that (1) there was insufficient evidence to support the convictions for simultaneous possession of drugs and a firearm and for possession of a firearm; (2) the circuit court abused its discretion in ordering consecutive sentences; and (3) the circuit court abused its discretion in denying his request for a pretrial hearing. We affirm in part and reverse and remand in part.
McKinney argues that the evidence was insufficient to support his convictions for simultaneous possession of drugs and a firearm and for possession of a firearm. More specifically, he argues that the proof failed to establish that he constructively possessed these items. He cites the testimony of Officer Jonathan Chambers of the Thirteenth Judicial Drug Task Force who stated that there were two other men, Sharde Mullins and Jaylon McKamie, in the home at the time of the search. Chambers also testified that these two men could have placed the drugs and firearm in the closet, but they were not investigated, and the firearm and drugs were not submitted to the crime lab for latent-print testing. Based on this evidence, McKinney argues, "It is not beyond the realm of possibility that someone else planted [the firearm and drugs] there and left [McKinney to] take the fall and face the consequences."
In order to preserve for appeal the issue of the sufficiency of the evidence, a defendant must first raise the issue to the circuit court as provided in Arkansas Rule of Criminal Procedure 33.1. Rule 33.1(a) provides that, in a jury trial, a defendant must challenge sufficiency by a specific motion for directed verdict at the close of the evidence offered by the prosecution and at the close of all the evidence. Ark. R. Crim. P. 33.1(a) (2017). A defendant's failure to raise the issue at the times and in the manner required by the rule will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the judgment. Ark. R. Crim. P. 33.1(c).
A motion for directed verdict is inadequate if it states "that the evidence is insufficient [and] does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense." Gillard v. State , 372 Ark. 98, 101, 270 S.W.3d 836, 838 (2008) (citing Ark. R. Crim. P. 33.1(c) ; Smith v. State , 367 Ark. 274, 239 S.W.3d 494 (2006) ). The motion must specifically advise the circuit court as to how the evidence was deficient. Id. , 270 S.W.3d at 838. The reason underlying this requirement that specific grounds be stated and that the absent proof be pinpointed is that it allows the circuit court the option of either granting the motion or, if justice requires, allowing the State to reopen its case to supply the missing proof. Id. , 270 S.W.3d at 838-39. We will not address the merits of an appellant's insufficiency argument where the directed-verdict motion is not specific. Id. , 270 S.W.3d at 839.
In the present case, McKinney made the following motions for directed verdict:
I don't believe that there was sufficient evidence that demonstrated or proved that [McKinney] in any way possessed specifically a firearm in this case, therefore the jury could not declare that he would be guilty of simultaneous possession of drugs and firearms.
....
I don't believe that the State demonstrated or showed or met their burden in regard to the gun and that [McKinney] in any way possessed a firearm. Therefore, a jury could not conclude that he could be guilty of possession of a firearm.
McKinney's motions for directed verdict merely stated that he did not possess the firearm. He did not argue below that the State failed to prove that he constructively possessed the firearm. Under these circumstances, we hold that McKinney's motion was too general to preserve the constructive-possession argument he has raised on appeal. Conley v. State , 2011 Ark. App. 597, at 6-7, 385 S.W.3d 875, 878-79 (holding that the appellant failed to preserve his sufficiency argument where he argued in his motions for directed verdict that the State failed to prove possession of drugs and drug paraphernalia but argued on appeal that the State failed to establish constructive possession). Accordingly, we affirm on the issue of the sufficiency of the evidence supporting McKinney's convictions for simultaneous possession of drugs and a firearm and possession of a firearm by certain persons.
McKinney also argues on appeal that the circuit court abused its discretion in ordering consecutive sentences. After the jury returned its guilty verdicts and sentencing recommendation, the State requested that the circuit court sentence McKinney to twenty-four years of suspended imposition of sentence (SIS) for the possession-of-methamphetamine and delivery-of-methamphetamine convictions and to order that the sentences for the remaining convictions (possession of a firearm by certain persons, maintaining a drug premises, simultaneous possession of drugs and a firearm, and the proximity enhancement), which totaled 130 years, be run consecutively. McKinney's counsel did not respond or object. Thereafter, the circuit court found that it lacked authority to order SIS where the defendant had been determined to be a habitual offender, and it concluded that it would follow the jury's sentencing recommendations. The court then stated that the jury had spent "quite a bit of time deliberating on this. Obviously, they had different thoughts about different sentences," and ordered that the sentences run consecutively for a total of 154 years. McKinney did not object.
In order to preserve an argument for appeal there must be an objection in the circuit court that is sufficient to apprise that court of the particular error alleged. Brown v. State , 326 Ark. 56, 60, 931 S.W.2d 80, 83 (1996). Further, we will not address arguments raised for the first time on appeal. Id. , 931 S.W.2d at 83. Our supreme court has specifically stated that when an appellant did not object to his or her terms of imprisonment being imposed consecutively, the court would not address the argument on appeal. Id. , 931 S.W.2d at 83 (citing Richardson v. State , 314 Ark. 512, 863 S.W.2d 572 (1993) ).
In the instant case, McKinney raised no objection to the State's request that his sentences run consecutively or to the circuit court's ruling that his sentences run consecutively. The alleged error should have been called to the attention of the circuit court by timely objection or inquiry so that the court could be given the opportunity to correct the error. Therefore, we hold that McKinney's sentencing argument is not preserved for appeal. Brown , 326 Ark. at 60, 931 S.W.2d at 83 ; Mixon v. State , 330 Ark. 171, 174, 954 S.W.2d 214, 216 (1997) (holding that in order to preserve a challenge to the circuit court's decision to run sentences consecutively, the appellant must make an objection in circuit court). Accordingly, we affirm the circuit court's decision to run McKinney's sentences consecutively.
McKinney's final argument on appeal is that the circuit court abused its discretion in denying his request for a pretrial hearing. On October 13, 2016, McKinney filed five pretrial motions: a motion to suppress statement, a motion to suppress search, a motion to compel testing of certain evidence, a motion for reconsideration or in the alternative to reduce bail, and a motion in limine. On November 8, 2016, counsel for McKinney requested a hearing on the motions, and the State objected the following day.
No hearing was held, and on November 14, 2016, the circuit court entered an order denying the motions to suppress the statement, to suppress the search, and to compel testing, finding that they were untimely. The court found that McKinney had appeared on two occasions (July 7, 2016, and August 18, 2016) and announced he was ready for trial. Before the jury trial started, counsel for McKinney moved for reconsideration, stating that by announcing for trial, he did not intend to waive the right to a hearing on his pretrial motions. The court reiterated its finding that McKinney had twice announced that he was ready for trial and that the motion requesting the testing of evidence could not be performed before trial. The court denied the motion for reconsideration.
On appeal, McKinney argues that, pursuant to Arkansas Rule of Criminal Procedure 16.2(b), a motion to suppress evidence is timely if filed ten days before trial. Ark. R. Crim. P. 16.2(b) (2017). He contends that he filed his suppression motions well before that; therefore, the circuit court abused its discretion in denying his motion based on untimeliness.
The State first argues that, based on Rule 16.1 of the Arkansas Rules of Criminal Procedure, Rule 16.2 does not apply because this was a criminal prosecution in which the omnibus-hearing procedure was utilized. Ark. R. Crim. P. 16.1 (2016). However, the record in this case does not demonstrate that an omnibus hearing was set and/or held. Therefore, Rule 16.2 does apply. And based on Rule 16.2, McKinney's motions to suppress-filed forty-seven days before trial-were timely filed. Therefore, we hold that the circuit court abused its discretion in finding that the motions to suppress were untimely.
McKinney further contends that he was entitled to a hearing on his suppression motions. While Rule 16.2 does not mandate a pretrial hearing on suppression motions, at the very least, our statutory and case law mandates a hearing on the motion to suppress the statement. Coon v. State , 76 Ark. App. 250, 254, 65 S.W.3d 889, 891 (2001). "A hearing is mandatory on a motion to suppress, and the supreme court has said that a defendant is not required to question the admissibility of his pretrial statements more than once." Id. at 254, 65 S.W.3d at 891. Likewise, in Rankin v. State , our supreme court held that the circuit court erred when it admitted the defendant's custodial statements without conducting a hearing on the defendant's suppression motion, as it had been requested to do. 329 Ark. 379, 399-400, 948 S.W.2d 397, 408 (1997). The holding there relied on Arkansas Code Annotated section 16-89-107(b)(1) (1987), which provided in mandatory terms that a circuit court must hold a hearing on a motion to suppress a statement. See also Greene v. State , 335 Ark. 1, 29-30, 977 S.W.2d 192, 206 (1998) (holding that, based on Arkansas Code Annotated section 5-2-309(c) (Repl. 1997), a pretrial hearing is required when a defendant contests a mental evaluation).
Based on the above, McKinney was entitled to a hearing on his motion to suppress his statement, and the circuit court abused its discretion in denying his request. We do not extend this holding to McKinney's motion to suppress the search, as there is no statutory authority mandating a pretrial hearing on such a motion.
As a final argument, the State contends that if the circuit court erred in denying the motion to suppress McKinney's statement, the error was harmless beyond a reasonable doubt. The State contends that McKinney, in his statement, revealed information about his methamphetamine trade, but he did not confess to any facts surrounding the charges he faced at trial. For instance, he did not confess to the November 10 or 24, 2015 drug transactions or to possessing any of the evidence obtained in the search of his home on January 28, 2016. The State argues that the information in the statement was cumulative of the testimony of other witnesses at trial; thus, the error was harmless.
Illegally obtained evidence that is erroneously admitted is subject to the constitutional harmless-error analysis. Schalski v. State , 322 Ark. 63, 69-70, 907 S.W.2d 693, 697 (1995) (citing Fahy v. Connecticut , 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963) ). Before a federal constitutional error can be held harmless, this court must declare it harmless beyond a reasonable doubt. Schalski , 322 Ark. at 70, 907 S.W.2d at 697 (citations omitted).
In the case at bar, there was overwhelming evidence to support the jury's findings that McKinney sold drugs to the confidential informants on November 10 and 24, 2015. The informants and Officer Chambers, who participated in the drug transactions, testified that McKinney sold them drugs, and there were videos of the transactions. Therefore, the admission of McKinney's statement was harmless error beyond a reasonable doubt as to the convictions for delivery of methamphetamine and possession of methamphetamine, and we affirm those convictions.
However, we cannot reach the same conclusion regarding the remaining convictions for maintaining a drug premises, simultaneous possession of drugs and a firearm, possession of methamphetamine with intent to deliver, and possession of a firearm by certain persons. While McKinney's statement did not include admissions on these charges, his statement did detail his drug business, and the jury could have found that he possessed the firearm and drugs at his house as part of his drug business. Therefore, we cannot conclude that the admission of the statement-as it relates to his convictions for maintaining a drug premises, possession of methamphetamine with intent to deliver, simultaneous possession of drugs and a firearm, and possession of a firearm by certain persons-was harmless beyond a reasonable doubt.
In conclusion, we affirm McKinney's convictions for delivery of methamphetamine and possession of methamphetamine. However, we hold that the circuit court abused its discretion in denying McKinney's motions to suppress his statement and the search based on untimeliness. Therefore, we reverse and remand the circuit court's order denying McKinney's suppression motions. We also hold that the circuit court abused its discretion in denying McKinney's request for a hearing on his motion to suppress his statement and that this was not harmless error.
On remand, we direct the circuit court to rule on the merits of McKinney's motion to suppress the search. We further direct the circuit court to hold a hearing on the record for the limited purpose of considering the arguments and allegations presented in McKinney's pretrial motion to suppress his statement. If, after ruling on the motion to suppress the search and/or at the conclusion of the hearing on the motion to suppress the statement, the circuit court determines that either or both motions have merit, the court should suppress the search and/or statement and order a new trial on the charges of maintaining a drug premises, simultaneous possession of drugs and a firearm, possession of methamphetamine with intent to deliver, and possession of a firearm by certain persons. If the circuit court determines that the motions lack merit, a new trial will not be required and these convictions will be affirmed. Rankin , 329 Ark. at 401, 948 S.W.2d at 408 ; see also Bell v. State , 324 Ark. 258, 262, 920 S.W.2d 821, 823 (1996).
Affirmed in part; reversed and remanded in part.
Gladwin and Murphy, JJ., agree.
The jury also found McKinney guilty of second-degree endangering the welfare of a minor; however, this conviction was dismissed on the State's motion.
McKinney was sentenced to eighteen years' imprisonment for the delivery-of-methamphetamine conviction plus an enhancement of ten years' imprisonment for committing the crime in proximity to certain facilities (a church) for a total of twenty-eight years.
In this appeal, McKinney does not challenge the sufficiency of the evidence supporting the convictions for delivery of methamphetamine, possession of methamphetamine, maintaining a drug premises, and possession of methamphetamine with intent to deliver.
The court also denied the motion for reconsideration or in the alternative to reduce bail, stating that it had thoroughly considered the issue at the October 6, 2016 bond hearing. The court took the motion in limine under advisement. The disposition of these two motions is not in dispute on appeal.
His argument on appeal does not include his motion to compel testing of certain evidence; accordingly, he has abandoned any argument related to this motion. | [
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RAYMOND R. ABRAMSON, Judge
Mahmoud Abdi appeals the Pulaski County Circuit Court order terminating his parental rights to his son, H.A. On appeal, Abdi argues that the circuit court erred in finding that (1) a statutory ground supported termination and (2) it was in H.A.'s best interest to terminate his parental rights. We affirm.
On January 25, 2016, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of H.A. In the affidavit attached to the petition, DHS alleged it had received a report concerning H.A.'s mother's, Chavi Stampley's, mental health after she gave birth to his half sister, N.S. When a DHS worker made contact with Stampley, Stampley stated that she had left H.A. with Abdi while she gave birth to N.S. DHS interviewed Abdi, and he explained that he and Stampley had been in a relationship for ten years, but they were no longer together. He stated that he previously had custody of H.A. He had then returned custody of H.A. to Stampley, but a month before she was to give birth to N.S., she had returned custody back to him. The court entered an ex parte order for emergency custody on the same day the petition was filed.
On February 1, 2016, the court entered a probable-cause order. The court found probable cause for the emergency custody and awarded Abdi visitation with the child. On March 14, 2016, the court adjudicated H.A. dependent-neglected based on Stampley's parental unfitness, but the court found that Abdi did not contribute to the dependency-neglect finding. As to Abdi, the court found:
Mr. Abdi is the one that has taken care of [H.A.], but Mr. Abdi has made some poor decisions along the way. He should take advantage of the services offered to work past these issues so they are not concerns anymore. Mr. Abdi should encourage [H.A.], but he should not make any false promises. Mr. Abdi needs to stop drinking alcohol altogether. Alcohol has been an issue in his past; he had to go to drug and alcohol classes because of it.
On July 13, 2016, the court held a review hearing. Danielle Kimbrough, a DHS employee, testified that Abdi was in partial compliance with the case plan in that he had visited H.A. and was attending parenting classes. However, she testified that he had tested positive for alcohol on a screening on May 10 and had not completed his drug-and-alcohol assessment. She further noted that he had attempted to complete his psychological evaluation but needed an interpreter and that a referral had been made. The court found that Abdi "is doing a bit better, but still needs work" and ordered him "to get going and finish services."
On January 11, 2017, the court entered a permanency-planning order. The court authorized DHS to proceed with termination of Stampley's parental rights, although the court found that Abdi had made substantial, measurable progress and ordered that services to him should continue. The court believed placement with Abdi could occur by or at the next hearing, which would be within three months. The court granted Abdi unsupervised visitation at the DHS office with progression to day visits at Abdi's home, at DHS's discretion. The court further ordered him to ensure that all his criminal fines, fees, and requirements were up to date.
On February 14, 2017, DHS filed a motion for revocation of Abdi's unsupervised visitation. DHS alleged that during the first unsupervised visit at Abdi's home, H.A. called his foster mother to pick him up because Abdi had drunk several bottles of liquor and had been so intoxicated that he would not wake up. When the foster parents arrived, they observed that Abdi appeared to be intoxicated. On the same day the motion was filed, the court entered an order revoking Abdi's unsupervised visitation.
On April 5, 2017, the court entered a permanency-planning order. The court found Abdi "has an alcohol problem. It is obvious to everyone but him." The court further found that DHS may make a drug-and-alcohol-assessment referral, but it did "not believe [Abdi] will be truthful." The court changed the goal of the case to adoption with proceeding toward termination of parental rights.
On April 21, 2017, DHS filed a petition for termination of Abdi's parental rights. DHS alleged three grounds for termination: (1) the child had been adjudicated dependent-neglected and had continued to be out of the home of the noncustodial parent for twelve months and despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that prevented the child from safely being placed in the parent's home, the parent had failed to remedy the conditions; (2) other factors or issues arose subsequent to the filing of the original petition for dependency neglect that demonstrate that placement of the child in the custody of the parent is contrary to the child's health, safety, or welfare and that, despite the offer of appropriate services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the child in the custody of the parent; and (3) aggravated circumstances: there is little likelihood that services to the family would result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) ; (vii)(a) ; (ix)(a)(3) (Supp. 2017).
The court held a termination hearing on June 19, 2017. Dr. George DeRoeck, a psychologist, testified that he performed a forensic psychological evaluation on Abdi on August 30, 2016, and that Abdi self-reported that he did not have any issues with drugs or alcohol. He noted that Abdi has the intellectual capability to parent and that he had not noted a significant psychopathology.
Kimbrough, the DHS supervisor, testified that H.A. had been in foster care for about a year and four or five months and that she recommended termination of Abdi's parental rights due to his alcohol issues. She explained that Abdi had not had a trial placement with H.A., and she recounted the unsupervised visit that was prematurely terminated because Abdi was intoxicated. She stated that DHS had offered Abdi visitation, parenting classes, individual counseling, and a drug-and-alcohol assessment. She also stated that Abdi had received home studies on April 4 and November 11, 2016, and that both studies were favorable. She noted that he had completed individual counseling and parenting classes but that he delayed completing his drug-and-alcohol assessment until May 18, 2017. She stated that he tested positive for alcohol on February 19 and May 10, 2016, and February 14 and May 11, 2017. On cross-examination, Kimbrough admitted that Abdi had also tested negative on several alcohol screenings. She explained that DHS had administered fifty-four total screenings on Abdi and that he was always tested for drugs and tested negative each time; however, DHS did not always screen for alcohol.
Kimbrough testified that Abdi denies having any issues with alcohol; thus, she did not believe alcohol treatment would result in successful reunification with H.A. She noted that his drug-and-alcohol assessment recommended twelve group sessions and five individual sessions but that Abdi never received the recommendation because DHS received it at the end of May, and Abdi was arrested on June 1.
Kimbrough explained that Abdi was arrested in June due to an incident at the DHS office and currently remained incarcerated. Specifically, Abdi arrived at the office insisting to see H.A., and Kimbrough informed him that he had to pass an alcohol screening. Abdi refused to provide a sample and became irate and emotionally unstable. He then had to be escorted out of the building. Kimbrough believed that Abdi was under the influence of alcohol at the time of the incident. She did not know Abdi's criminal history or whether he was on probation at the time of the incident.
DHS then introduced into evidence Abdi's criminal-sentencing order dated September 24, 2015, which reflected a conviction for aggravated assault on a family or household member. Abdi received thirty-six months' probation.
Ruben Harris, the DHS caseworker assigned to H.A.'s case, discussed two alcohol screenings he administered on Abdi. Specifically, he testified that he administered a screening on February 14, 2017, at 5:58 p.m. at Abdi's apartment. He noted that the apartment was cluttered with pizza boxes, beer cans, and clothes and that Abdi registered a .04 blood-alcohol level. He testified that Abdi admitted drinking alcohol and "begged" him not to tell the court or the DHS supervisor. He testified that he also administered an alcohol screening on May 11, 2017, at about 5:00 p.m. and that Abdi tried to manipulate the test. After Harris corrected Abdi, Abdi registered a .02 blood-alcohol level. He noted that he completed a referral for a drug-and-alcohol assessment for Abdi on February 17, 2017. Harris further testified that he had difficulties contacting Abdi because he frequently changed phone numbers. He believed Abdi was employed at a truck stop or at the restaurant Sharks, but he had not visited Abdi's place of employment due to confidentiality.
Angela Brown, an adoption specialist, testified that she assessed H.A.'s file for adoptability and that the results showed that 146 families are interested in adopting a child with his characteristics. She further testified that he does not have any specific characteristics that make him more difficult to place and that he is adoptable.
Abdi testified that DHS had communicated with him frequently until February 2017. He explained that after that time, DHS did not return his phone calls, and when he went to the DHS office, they told him it was unnecessary for him to come there. He testified that he works at different locations of Sharks throughout Little Rock, not a truck stop. He stated that he last drank alcohol on Valentine's Day of that year. However, on cross-examination, he admitted that when he was arrested, he had a half pint of alcohol in his possession and that he had consumed the other half of the pint. He also testified that he did not have an alcohol problem and that he would not drink alcohol if he had custody of H.A. Abdi testified that he received the recommendations from his drug-and-alcohol assessment on the day of the termination hearing but that he would be willing to complete the recommendations.
Abdi further testified that his probation officer had referred him to "alcohol abuse meetings" and that he had received a completion certificate. He stated that he had submitted the certificate to a DHS worker, but he did not remember her name. When questioned by the court, Abdi explained that he had completed the program in November or December 2015. He further testified that following the hearing, he would return to jail and that a $2500 bond had been set.
On July 24, 2017, the circuit court entered a written order terminating Abdi's parental rights based on the aggravated-circumstances ground and the subsequent-factors ground. The court further found it was in H.A.'s best interest to terminate Abdi's parental rights. Abdi timely appealed the termination order to this court.
We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep't of Human Servs. , 2015 Ark. App. 131, 456 S.W.3d 383. It is DHS's burden to prove by clear and convincing evidence that it is in a child's best interest to terminate parental rights as well as the existence of at least one statutory ground for termination. Id. On appeal, the inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id. We give a high degree of deference to the circuit court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Id. The termination of parental rights is a two-step process. The circuit court must find by clear and convincing evidence (1) the existence of one or more statutory grounds for termination and (2) that termination is in the best interest of the children. Wafford v. Ark. Dep't of Human Servs. , 2016 Ark. App. 299, 495 S.W.3d 96.
Abdi first challenges the court's finding that a statutory ground supported termination. We first address his arguments concerning the aggravated-circumstances ground.
Abdi argues that the evidence in this case is insufficient to support a finding that aggravated circumstances existed to warrant termination. He argues that the court speculated that there was little likelihood that further services would result in successful reunification. He asserts that he complied with the case plan and points out that in the January 2017 permanency-planning order, the court found that he had made significant, measurable progress to warrant the continuation of services. He claims that the only evidence to support the court's little-likelihood finding is the one failed unsupervised visitation. He acknowledges that he tested positive on alcohol screenings but points out that he also tested negative on several screenings and that his blood-alcohol level never registered above .04.
We find Abdi's argument unpersuasive and hold there was sufficient evidence to support the aggravated-circumstances ground. "Aggravated circumstances" means, among other things, that a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(ix)(a)(3)(B)(i) . In the March 14, 2016 adjudication order, the court stated that Abdi "needs to stop drinking alcohol altogether." However, Abdi tested positive for alcohol throughout the case. Even though Abdi tested negative on some screens and never tested higher than the legal limit, the evidence showed that his alcohol abuse is a significant problem. His first and only unsupervised visitation on February 11, 2017, with H.A. was prematurely terminated because he consumed alcohol and H.A. could not wake him. He was then arrested in early June 2017 following an incident at the DHS office, and Kimbrough testified that he appeared intoxicated and refused to submit to an alcohol screening. When he was arrested following the incident, he had a bottle of alcohol in his possession. Further, Abdi delayed completing his drug-and-alcohol assessment until May 18, 2017, despite receiving a referral in February 2017, and at the termination hearing, he denied having an alcohol problem. He further claimed at the termination hearing that he had last consumed alcohol in February 2017 but then later admitted he had consumed liquor in June 2017 after DHS had submitted a positive alcohol screen from May 2017. Given this evidence, we are not left with a definite and firm conviction that the circuit court made a mistake in finding that there was little likelihood that services to Abdi would result in successful reunification. Further, because only one ground is necessary for termination, we need not address Abdi's arguments concerning the subsequent-factors ground and the failure-to-remedy ground.
Abdi next argues that the circuit court erred in finding that it was in H.A.'s best interest to terminate his parental rights. A best-interest determination includes consideration of a child's adoptability and potential harm to the child if returned to the parent. Salazar v. Ark. Dep't of Human Servs. , 2017 Ark. App. 218, 518 S.W.3d 713. Abdi does not challenge the court's adoptability finding but argues that the court erred in finding that H.A. faced a potential risk of harm if placed in his custody. He argues that the circumstances here are similar to those in Rhine v. Arkansas Department of Human Services , 2011 Ark. App. 649, at 12, 386 S.W.3d 577, 583, in which this court reversed a circuit court's termination of a father's parental rights because there was no evidence that "any harm or real risk of potential harm was introduced into [the child's] life by [the father's] slight lapses in judgment."
In Rhine , the circuit court had ordered the father not to drink alcohol, and the father's parole conditions also included that he refrain from drinking alcohol. Id. The slight lapses in judgment included two incidents with alcohol. Id. The first incident involved the father drinking at home while the child spent the night at a friend's house, and the second incident involved the father and child being in a car with another passenger who had an open container of alcohol. Id. None of the incidents led to criminal charges against the father or revocation of his parole. Id. Further, at the termination hearing, the father acknowledged his poor decisions and his need for improvement. Id.
We find the circumstances here unlike Rhine and that there was sufficient evidence of potential harm. In considering the potential harm caused by returning the child to the parent, the court is not required to find that actual harm would result or to affirmatively identify a potential harm. Welch v. Ark. Dep't of Human Servs. , 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be viewed in a forward-looking manner and in broad terms. Collins v. Ark. Dep't of Human Servs. , 2013 Ark. App. 90, 2013 WL 546940. Additionally, the risk for potential harm is but one factor for the court to consider in its analysis. Carroll v. Ark. Dep't of Human Servs. , 85 Ark. App. 255, 148 S.W.3d 780 (2004).
In this case, Abdi introduced a risk of potential harm into H.A.'s life when he drank alcohol during the February 2017 unsupervised visitation. Moreover, Abdi was in denial of his alcohol problem, lied at the termination hearing about the last time he drank alcohol, and delayed completing his drug-and-alcohol assessment. We are not able to say that the circuit court's best-interest determination is clearly erroneous.
Affirmed.
Glover and Murphy, JJ., agree.
The circuit court terminated Stampley's parental rights in a separate order, and we affirmed the court's decision in Stampley v. Arkansas Department of Human Services , 2017 Ark. App. 628, 533 S.W.3d 669. | [
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N. MARK KLAPPENBACH, Judge
Appellant Jermaine Levert Hayes pleaded guilty to the first-degree battery of Kjuan Doucet that was committed on April 3, 2016. Appellant and Doucet were involved in a romantic rivalry over Ashley Stell, and appellant admittedly "slit [Doucet's] throat" with a serrated knife. Appellant's sentence was decided by a jury, and it sentenced him to twenty years in prison and a $10,000 fine. Appellant argues that the trial court abused its discretion by not instructing the jury to consider his proffered alternative-sentence jury instruction and that he suffered resulting prejudice. We affirm.
Arkansas Code Annotated section 16-97-101(4) (Repl. 2016) provides that the trial court, in its discretion, may instruct the jury that counsel may argue as to alternative sentences for which the defendant may qualify. The jury, in its discretion, then may make a recommendation as to an alternative sentence; this recommendation, however, shall not be binding on the court. Ark. Code Ann. § 16-97-101(4). The decision to allow alternative sentencing is reviewed for an abuse of discretion. Hoodenpyle v. State , 2013 Ark. App. 375, 428 S.W.3d 547. This standard of review is a high threshold, requiring that a trial court not act improvidently, thoughtlessly, or without due consideration. Id. Mechanical imposition of the jury's recommended sentences, or an unwavering court policy refusing to instruct the jury on alternative sentences with respect to certain offenses, is not an exercise of discretion. Rodgers v. State , 348 Ark. 106, 71 S.W.3d 579 (2002) ; Squyres v. State , 2015 Ark. App. 665, 476 S.W.3d 839.
In this case, before evidence was presented to the jury on sentencing, jury instructions were discussed by the trial court and the attorneys. At that time, appellant's attorney asked, "Are you going to consider allowing a probation instruction?" The trial court replied, "Probably not. I usually wait until the end to see." Defense counsel stated that he had brought such an instruction and would wait until the end to bring it up again.
Witnesses testified and surveillance video of the attack was played for the jury. Before the jury was instructed and closing arguments were given, appellant's attorney requested that the jury be given "the probation instruction." The trial court denied the request, and appellant's attorney replied, "Okay." The trial court then noted that defense counsel did not have anyone present to talk about probation and parole other than defense counsel, which was tantamount to the defense attorney testifying and an improper basis for the jury's knowledge of that subject. The trial court ended with remarks that this jury instruction was not proper and would not be allowed. Defense counsel proffered its proposed instruction based on AMI Crim. 2d 9111, which informed the jury that it could recommend probation or a suspended sentence but that any recommendation would not be binding on the trial court.
Appellant argues on appeal that the trial court failed to exercise its discretion or abused its discretion when it refused to instruct the jury on alternative sentences. We disagree. Authorizing a particular form of punishment is a far cry from mandating that it be considered, or that the jury be instructed that it be considered in a given case. Squyres , supra ; Dale v. State , 55 Ark. App. 184, 935 S.W.2d 274 (1996). The permissive tone of the language in Arkansas Code Annotated section 16-97-101(4) is unmistakable in that the trial court has discretion and "may" give this instruction.
As the record reveals, this jury instruction was requested at the outset of this sentencing trial, the trial court replied that it usually waited until the end of such proceedings to consider it, and when requested at the end, the trial court rejected the instruction. The record demonstrates that the trial court exercised its discretion in this instance, and we see no abuse of that discretion.
Moreover, appellant cannot demonstrate that he was prejudiced by the trial court's refusal to instruct the jury to consider alternative sentencing. Absent a showing of prejudice, we will not reverse. Miller v. State , 97 Ark. App. 285, 248 S.W.3d 487 (2007). A person convicted of Class B felony first-degree battery is subject to punishment of five to twenty years in prison, up to a $15,000 fine, or both. See Ark. Code Ann. § 5-4-201(a)(1), § 5-4-401(a)(3), and § 5-13-201(c)(1) (Repl. 2013). In closing arguments, appellant's attorney argued for a fine-only sentence as the consequence of appellant's having admittedly "slit" a man's throat. The jury chose to sentence him to the maximum prison term for first-degree battery, plus a $10,000 fine, just shy of the $15,000 maximum. It strains credulity to argue that the jury would have recommended that appellant be sentenced to probation or a suspended sentence had it been given the option. Compare Akers v. State , 2015 Ark. App. 352, 464 S.W.3d 483 ; Bell v. State , 2014 Ark. App. 458.
We conclude that there was no abuse of discretion by the trial court in refusing to instruct the jury on the alternative sentence of probation and that appellant failed to establish any prejudice from its omission.
Affirmed.
Harrison and Brown, JJ., agree. | [
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DAVID M. GLOVER, Judge
Bruce Sampson was convicted of three counts of Class D felony aggravated assault with a firearm pursuant to Arkansas Code Annotated section 5-13-204(a)(2) and sentenced to a total of thirty months' imprisonment. On appeal, he argues (1) the circuit court erred in not declaring a mistrial; (2) there was insufficient evidence to support his convictions for aggravated assault; (3) the State failed to disprove his defense of justification; and (4) the third exception to the contemporaneous-objection rule found in Wicks v. State , 270 Ark. 781, 606 S.W.2d 366 (1980), is applicable to three alleged trial errors-an erroneous jury instruction was given, the officers exceeded their authority in their encounter with Sampson in violation of Rule 2.2 of the Arkansas Rules of Criminal Procedure and violated his Fourth Amendment rights, and the affirmative defense of entrapment was supported by the evidence presented at trial. We affirm.
On October 13, 2016, Sebastian County Sheriff deputies Mark Harris and Daniel Bazar, along with Mansfield Police Department officer Brad Schmitt, were dispatched to investigate a report of Sampson allegedly shooting his neighbor's dog because the dog had attacked his rabbits. The officers approached Sampson's residence to speak with him about the incident and to ask him not to shoot toward his neighbor's house. What occurred after the officers arrived at Sampson's house is disputed. The officers approached the house by knocking on the carport door instead of the front door. The officers testified the lights went off in the house after the first knock, but Sampson testified he turned the lights on when he heard the knock. The officers' testimony was that they shined their flashlights at the door to illuminate the area for their safety and did not turn them off when Sampson came to the door and told them to do so. Sampson's testimony was that he did not know who was at the door, even though the officers had identified themselves; he stated he did not know if it was an officer or a person who was lying about his identity. According to the officers, Sampson was agitated and was hiding the right side of his body behind the door frame; because the officers could not see Sampson's hands, and because there had been a report that Sampson had recently been firing a gun, the officers asked Sampson to show them his hands. The testimony of the officers was that Sampson pulled his rifle out and swung it across all three of them, placed it in his arms, and the officers then drew their firearms. Sampson's testimony was that while he did deliberately point his operable, loaded .22 rifle at the three officers, the safety was on, and he pointed his gun at them only after the officers drew their guns on him.
Sufficiency of the Evidence
Although Sampson challenges the sufficiency of the evidence in his second and third points on appeal, preservation of an appellant's right to be free from double jeopardy requires a review of the sufficiency of the evidence before a review of trial errors. Campbell v. State , 2017 Ark. App. 59, 512 S.W.3d 663. Our test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Wells v. State , 2017 Ark. App. 174, 518 S.W.3d 106. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, the evidence is viewed in the light most favorable to the State; only evidence supporting the verdict is considered. McCastle v. State , 2012 Ark. App. 162, 392 S.W.3d 369. Weighing the evidence, reconciling conflicts in testimony, and assessing credibility are all matters exclusively for the trier of fact. Holland v. State , 2017 Ark. App. 49, 510 S.W.3d 311.
On appeal, Sampson argues there was insufficient evidence to support his aggravated-assault convictions. A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he or she purposely displays a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person. Ark. Code Ann. § 5-13-204(a)(2) (Repl. 2013). Sampson further argues he was acting in self-defense, and the provisions of section 5-13-204 do not apply to a person acting in self-defense or the defense of a third party. Ark. Code Ann. § 5-13-204(c)(2). Justification becomes a defense when any evidence tending to support its existence is offered, and once raised, it becomes an element that must be disproved by the State beyond a reasonable doubt. Green v. State , 2011 Ark. App. 700, 2011 WL 5562803. The circuit court instructed the jury on justification. Sampson contends the State failed to disprove his justification defense beyond a reasonable doubt. Neither of these sufficiency arguments is preserved for appellate review.
In a jury trial, a motion for directed verdict shall be made at the close of the State's evidence and at the close of all the evidence; the motion shall state the specific grounds on which it is being made. Ark. R. Crim. P. 33.1(a) (2017). The failure to challenge the sufficiency of the evidence in the manner required in subsection (a) constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the verdict. Ark. R. Crim. P. 33.1(c).
At the close of the State's evidence, the following colloquy occurred:
APPELLANT'S ATTORNEY : Your Honor, I don't believe the State has met its burden of proof in this case. We move for a directed verdict based on lack of evidence. The elements of the offense in this case are that the police officers have to believe that they are in a position of imminent threat of serious physical injury or death as a result of my client pulling a firearm on them. And had that been the case, then I believe under these circumstances that they would have used deadly force against Mr. Sampson had they thought they were going to be shot.
PROSECUTOR : Just to clarify, that's not what the law says. The officers don't have to believe anything.
APPELLANT'S ATTORNEY : That they are under circumstances manifesting substantial indifference to the value of human life.
The circuit court denied Sampson's directed-verdict motion. At the close of all the evidence, Sampson's attorney renewed "all previous motions in the same verbiage in which they were made on the same factual basis in which they were made." The circuit court again denied the motion.
On appeal, Sampson argues he was in his home, he did not show his gun until ordered to do so by the officers, he did not point the gun directly at the officers until they pointed their weapons at him, and he did not aim to shoot at law enforcement and had no intention of doing so. Sampson further argues he was justified in defending himself against officers while in his own home after the officers drew their weapons, and the State failed to disprove such justification beyond a reasonable doubt. Neither of these arguments is the argument Sampson made to the circuit court in his directed-verdict motions. Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. Lindsey v. State , 2017 Ark. App. 675, 536 S.W.3d 163. Because Sampson failed to raise the arguments he makes on appeal to the circuit court, his sufficiency arguments are not preserved for our review.
Mistrial
Sampson next argues that the circuit court erred in not declaring a mistrial during the voir dire of prospective jurors when the court asked if anyone knew any witnesses listed by the State. Mrs. Laticia Spells stated she knew one of the witnesses through her husband, who was the police chief, and she "really [didn't] think [she] could be impartial with this situation given what happened last year." The circuit court dismissed Spells from serving on the jury due to the nature of her husband's employment. Sampson moved for a mistrial, arguing he could not have a fair trial given the press exposure of the "Cooper" case and Spells's statement irrevocably tainted the jury to such a degree that no cautionary instruction would cure the taint. The State responded that Spells did not say what she was referring to, simply that she had read something that made her believe she could not be an impartial juror in this case. In denying Sampson's motion for a mistrial, the circuit court stated it would give an appropriate instruction at some point but would not do so at that time because it would call more attention to the issue. Sampson renewed his request for a mistrial before opening statements were made; the circuit court again denied the request, noting Spells did not mention Cooper by name. Sampson again renewed his request for a mistrial at the close of the State's case; in denying the request again, the circuit court noted it had immediately excused juror Spells for cause and had offered to make any sort of cautionary instruction should Sampson request it. Sampson did not request the circuit court to admonish the jury or give a cautionary instruction.
A mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. McLaughlin v. State , 2013 Ark. App. 26, 2013 WL 244444. The decision to grant a mistrial is within the sound discretion of the circuit court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Lewis v. State , 2012 Ark. App. 184, 396 S.W.3d 775. Declaring a mistrial is proper only when the error is beyond repair and cannot be corrected by any curative relief; the circuit court is in the best position to evaluate the impact of any alleged errors. McClinton v. State , 2015 Ark. 245, 464 S.W.3d 913. Among the factors considered by this court on appeal in determining whether a circuit court abused its discretion in denying a mistrial motion are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. McLaughlin, supra.
In support of his argument, Sampson cites Meny v. State , 314 Ark. 158, 861 S.W.2d 303 (1993), a case in which the defendant was convicted of three counts of rape, one count of kidnapping, and one count of attempted capital-felony murder of an eighteen-year-old male. In that case, a prospective juror told the prosecutor during voir dire that everyone had heard about and read newspaper accounts of the incident. Defense counsel moved for a mistrial on the basis that the prospective juror's comment had tainted the jury panel. The circuit court denied the motion, and the State asked the prospective jurors if they had read anything about the case and formed any opinions as to the guilt or innocence of Meny; no one said they had formed such an opinion. The State further inquired whether the prospective jurors could set aside what they had seen or heard and base their decision solely on the testimony at trial; all of the prospective jurors agreed they could do so. On appeal, Meny argued that it was error for the circuit court not to grant a mistrial; our supreme court disagreed and affirmed the circuit court's denial of Meny's motion for mistrial.
Sampson argues to this court that in his case the reason for the request for mistrial was not based on his alleged crime, but rather on the fact that two months before to the incident at his house, a sheriff's deputy, Bill Cooper, was shot while responding to a disturbance call. Sampson contends the press surrounding the death of a law-enforcement officer while responding to a disturbance call at a private residence two months before the incident at his house should have been inquired about during voir dire, and prospective jurors should have been asked whether they could set aside any preconceptions of what they had seen or heard about Cooper's death. Sampson argues there was no showing that the prospective jurors could set aside Mrs. Spells's comment, and the circuit court and the State "assumed it would be better to not address it and look the other way." Sampson asserts that because the circuit court and the State did not show that the prospective jurors could set aside the comment, it was error for the circuit court to refuse to grant a mistrial "when it did not cure any prejudice by issuing a jury admonishment to disregard the remark or otherwise show that the prospective jurors could set aside the comment and base their decisions on the testimony at trial."
We disagree with Sampson's contention that the circuit court erred in denying his motion for mistrial. In Meny , the comment made was regarding the case being tried. In the present case, Mrs. Spells's comment did not identify the situation to which she was referring-it was a vague reference to "what happened last year," which gave other prospective jurors no indication to what she was referring. Furthermore, the circuit court dismissed Mrs. Spells for cause due to her husband's position as police chief, which eliminated her as a potential juror. And to the extent Sampson complains of the circuit court's failure to cure any prejudice by issuing an admonishment to the jury, Sampson did not ask for such an admonishment to be given, even though the circuit court offered to do so if requested. The party objecting to the statement bears the burden of requesting an admonition sufficient to cure the prejudice. McLaughlin, supra. The failure to give an admonition or cautionary instruction is not error where none is requested. Lewis, supra. We affirm the circuit court's denial of Sampson's request for mistrial.
Wicks Exception
In his last point on appeal, Sampson argues that, although he made no objection, there were three errors in his trial that should still be addressed on appeal pursuant to the third exception to the contemporaneous-objection rule enumerated in Wicks v. State, supra ,which "relates to the trial court's duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial." Wicks , 270 Ark. at 786, 606 S.W.2d at 369. Specifically, Sampson argues (1) the circuit court gave the incorrect jury instruction on justification, giving AMI Crim. 2d 708 (Use of Physical Force in Making an Arrest or Preventing an Escape) instead of AMI Crim. 2d 705 (Use of Deadly Physical Force in Defense of a Person); (2) the officers exceeded their authority in their encounter with him in violation of Rule 2.2 of the Arkansas Rules of Criminal Procedure and violated his Fourth Amendment right to be free of unreasonable searches and seizures when they did not obtain a search warrant to search for the gun allegedly used by him to shoot his neighbor's dog before coming to his house to speak with him; and (3) the affirmative defense of entrapment was supported by the evidence presented at trial and the circuit court allowed the jury to believe the officers had a right to arrest Sampson when, in fact, the officers were the ones who induced the crime by insisting Sampson show them his hands while he had the gun in his hands. The third Wicks exception is not applicable to any of Sampson's arguments.
Wicks presents narrow exceptions that are to be only rarely applied; our appellate courts have allowed issues to be considered under the third Wicks exception only when the error affects the very structure of the criminal trial. Jones v. State , 2017 Ark. App. 286, 524 S.W.3d 1. This exception has been applied in cases involving the right to a twelve-person jury, violations of Arkansas Code Annotated section 16-89-125(e), and a prosecutor's statements during voir dire that have the effect of shifting the burden of proof. Id.Sampson's arguments on appeal fit into none of these categories. In Halliday v. State , 2011 Ark. App. 544, 386 S.W.3d 51, our court declined to extend the third Wicks exception to the giving of an erroneous jury instruction, noting that the circuit court gave the jury instructions that it, and the parties, deemed to be correct. Likewise, our court has also held that failure to object to suppression-of-evidence issues is not the type of error contemplated to be exempt under Wicks from the contemporaneous-objection requirement. Camacho-Mendoza v. State , 2009 Ark. App. 597, 330 S.W.3d 46. Lastly, our supreme court has rejected Wicks as a basis to argue an affirmative defense on appeal when the defendant failed to preserve the argument at trial. Se e.g. , Marcyniuk v. State , 2010 Ark. 257, at 12 n.2, 373 S.W.3d 243, 252 n.2. Because the third Wicks exceptions not apply to these arguments, and Sampson failed to make contemporaneous objections at trial on these issues, they are not preserved for appellate review. Chunestudy v. State , 2012 Ark. 222, 408 S.W.3d 55.
Affirmed.
Abramson and Murphy, JJ., agree.
Sampson's counsel made reference to the Cooper case, not Mrs. Spells; no elaboration was made regarding the facts of that case.
In his brief, Sampson attempts to append to his mistrial argument the fact that the prosecutor told the jurors in closing arguments that they were the "conscience" and the "protectors" of the community. Although Sampson objected to those characterizations and asked that the jury be instructed to disregard those statements, and for which the circuit court allowed Sampson to address the comments in his closing argument, those statements were not made in connection with the incident for which the motion for mistrial was made-during voir dire of prospective jurors before the commencement of trial.
The details of the Cooper case were not expounded upon at trial, but Sampson discusses in some detail the events surrounding that case in his brief on appeal, and we must discuss that event in order to address his argument on appeal. | [
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LARRY D. VAUGHT, Judge
Following a jury trial, the Union County Circuit Court entered a sentencing order convicting Jeremiah Green of first-degree murder, an enhancement for committing first-degree murder in the presence of a child, an enhancement for employing a firearm as a means of committing first-degree murder, and possession of a firearm by certain persons. Jeremiah was sentenced to imprisonment for forty years, ten years, fifteen years, and fifteen years, respectively, to run consecutively, for a total of eighty years. Jeremiah appeals the sentencing order, challenging the sufficiency of the evidence supporting the first-degree-murder conviction and the possession-of-a-firearm conviction. We affirm.
On July 24, 2015, Jeremiah was charged by information with first-degree murder and possession of firearms by certain persons. The information further alleged that Jeremiah employed a firearm in committing first-degree murder and that he did so in the presence of a child. The information was later amended to allege that Jeremiah previously had been convicted of more than one felony, but less than four felonies; therefore, Jeremiah was charged as a habitual offender.
On November 3 and 4, 2016, a jury trial was conducted during which the State called numerous witnesses, and through their testimony it was established that shortly before 2:00 p.m. on July 5, 2015, at the Hillsboro Manor apartment complex in El Dorado, Arkansas, a male, identified as Cameron Johnson, was found dead lying face down in a large pool of blood between two vehicles in the parking lot of the complex.
Ten-year-old K'Naya Buggs testified that she lived at Hillsboro Manor. K'Naya had been popping firecrackers on July 5, 2015, when she saw Cameron talking to Shakorey Wade, K'Naya's mother's boyfriend. Cameron was standing in the parking lot near his vehicle and K'Naya's mother's vehicle. K'Naya asked Cameron to light her punk so she could continue to pop firecrackers. When it began to rain, K'Naya went into the doorway of her building. She said at that time Shakorey had gone inside and that Cameron was alone in the parking lot. She was leaning out of her door when she saw Jeremiah, whom she knew, "sneak" up behind Cameron and shoot him in the back. She testified that she saw Jeremiah holding a black gun but did not hear the shot because people were shooting firecrackers in the area. She further stated that she saw Cameron fall but did not think that he had been shot until she saw blood on the ground.
Lashena Stanley testified that she lived at Hillsboro Manor, and on the day in question, Keet Miller knocked on her door and asked her to come outside to check on Cameron. She did and found him lying on the ground in a pool of blood in the parking lot between two vehicles. Lashena testified that she witnessed Keet go through Cameron's pockets, enter Cameron's vehicle and remove a black backpack, and run away. Lashena testified that she did not see Jeremiah at this time; however, she stated that she had seen K'Naya playing outside before the shooting.
Sergeant Scott Harwell of the El Dorado Police Department testified that he found a gun-shell casing near where Cameron's body was found. Deborah Pumphrey, a forensic-firearm and tool-mark examiner with the Arkansas State Laboratory, testified that the gun-shell casing was fired from a nine-millimeter gun.
El Dorado Police Department criminal investigator Angela Means testified that Cameron was shot in the right side of his neck. She said that the investigation led to Jeremiah as a suspect in Cameron's death. She was unable to locate him immediately, but Jeremiah's father, Richard Miller, brought him to the police department on the evening of July 6, 2015.
Officer Means stated that she interviewed Jeremiah on two occasions and that Jeremiah's version of events continually changed. Jeremiah first said that on July 5, 2015, he had been at Hillsboro Manor visiting friends from 12:45 p.m. to about 1:30 p.m. Jeremiah said that his father picked him up around 1:30 p.m. and drove him to Little Rock where he stayed until the late afternoon of July 6, 2015. Officer Means called Jeremiah's father to confirm the alibi, and Jeremiah's father stated that it was not true. Officer Means interviewed Jeremiah again on July 8, 2015. Jeremiah admitted that the story he told about his father picking him up around 1:30 p.m. was not true. He said that he had been driving around with Briana Ford smoking marijuana when he received a call from "Ray" accusing him of killing Cameron. Miracle Rogers and Victoria Fikes testified that they saw Jeremiah at Hillsboro Manor on July 5, 2015.
Keet, Jeremiah's cousin, testified that he and Cameron were standing in the parking lot when Jeremiah walked toward them with a black gun sticking out of his right back pocket. Keet testified that Jeremiah ran by Keet, shot Cameron, and ran away. Keet admitted going through Cameron's pockets and opening Cameron's car but denied taking a backpack out of it. During cross-examination, Keet admitted that he initially did not tell the police what had happened and that he had lied to police when he said that he did not see the shooter's face. However, he stated that he was telling the truth at trial when he positively identified the shooter as Jeremiah. He also stated that he had recently been charged with capital murder in connection with Cameron's death and that his charges would be reduced if he testified against Jeremiah.
The State also presented the testimony of Shree Johnson and Greg Hayes, friends of Jeremiah's father, Richard. Shree and Greg testified that in the summer of 2016, they had a conversation with Richard about Jeremiah. They said that Richard told them that the police were looking for the murder weapon; then, he pulled a black nine-millimeter gun out of his pocket, set it on the table, and said "it's right here." Richard testified, denying that the conversation took place.
After the State rested, Jeremiah moved for a directed verdict challenging the sufficiency of the evidence supporting the first-degree-murder and possession-of-a-firearm-by-certain-persons charges. The circuit court denied the motion. Thereafter, the defense presented the testimony of Jeremiah's grandmother, Thomasina Snowden, who stated that on July 5, 2015, Jeremiah was dropped off at her house between 1:00-1:30 p.m. As they walked into her home, she said that Jeremiah received a phone call and left.
Winston Steward also testified for the defense. Winston said that he lives at Hillsboro Manor and was there immediately prior to the shooting. He said that he saw Cameron and Shakorey standing on the sidewalk and that he saw K'Naya popping firecrackers. Winston stated that Shakorey followed him into the building. A few minutes later, Lashena told Winston that Cameron was lying in the parking lot dead. Winston called 911. Finally, Winston testified that he did not see Jeremiah in the area where the murder took place.
The defense recalled Sergeant Harwell, who testified that he interviewed Keet several times. The sergeant denied coaching Keet's testimony. Sergeant Harwell explained the delay in arresting Keet. The officer testified that the police believed that they were looking for a "Keith Waller" and did not confirm that "Keith Waller" was not the suspect until October 8, 2016. Sergeant Harwell interviewed Keet on October 10 and 16, 2016, and the sergeant said that Keet was not truthful. The sergeant testified that Keet "came clean" the day before trial after he had been arrested for capital murder.
After the defense rested, Jeremiah's counsel renewed the motion for directed verdict based on the same grounds, and the circuit court denied the motion. The jury found Jeremiah guilty of first-degree murder, committing the murder in the presence of a child, employing a firearm to commit the murder, and possession of a firearm by certain persons. As stated above, Jeremiah was sentenced to a total of eighty years' imprisonment. The circuit court entered a sentencing order on November 15, 2016, and this appeal followed.
On appeal, Jeremiah challenges the sufficiency of the evidence supporting the convictions for first-degree murder and possession of a firearm by certain persons. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Crews v. State , 2017 Ark. App. 670, at 5, 536 S.W.3d 182, 186. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. Id. , 536 S.W.3d at 186. Only evidence supporting the verdict will be considered. Id. , 536 S.W.3d at 186.
Jeremiah first challenges the evidence supporting the first-degree-murder conviction. First-degree murder, defined in Arkansas Code Annotated section 5-10-102(a)(2) (Repl. 2013), provides that a person commits murder in the first degree if, with a purpose of causing the death of another person, the person causes the death of another person. A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person's conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013). A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Crews , 2017 Ark. App. 670, at 5, 536 S.W.3d at 186. Our supreme court has recognized that the intent necessary for first-degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds. Id. , 536 S.W.3d at 186.
Jeremiah contends that the State's case is circumstantial and that there are significant concerns about the credibility of the State's witnesses that cast doubt on the sufficiency of the evidence supporting his first-degree-murder conviction. First, he argues that K'Naya's testimony lacks credibility because she was only ten years old at the time; she testified that Jeremiah shot Cameron in the back between the shoulder blades when the medical evidence demonstrated that Cameron was shot in the right side of his neck; and K'Naya's mother's boyfriend (Shakorey) was also charged with the capital murder of Cameron and could have easily influenced K'Naya's testimony. Jeremiah also contends K'Naya's testimony is contrary to that of Winston's, an uninterested third party, who stated that he did not see Jeremiah at the apartment complex before or after the shooting.
Next, Jeremiah challenges the credibility of Keet's testimony. Jeremiah argues that while Keet testified that he witnessed Jeremiah shoot Cameron, he did not relate this story to the police until after he had been charged with capital murder in connection with Cameron's death. Up to that point, Keet had reported to police that he did not see the face of the person who shot Cameron and had only heard from Shakorey that Jeremiah had shot Cameron. Keet also admitted that he was to receive reduced charges for his testimony against Jeremiah. He contends that Keet's testimony is contrary to that of Winston's, who stated that he did not see Jeremiah at the apartment complex before or after the shooting. According to Jeremiah, all of these things together, render Keet's testimony unreliable.
Finally, Jeremiah also calls into question the credibility of the testimony of Shree and Greg, both of whom testified that Jeremiah's father, Richard, in the summer of 2016, showed them a nine-millimeter black gun and told them it was the gun used in the murder of Cameron. Jeremiah contends that this evidence is not credible in light of Richard's complete denial that the conversation took place. Jeremiah also argues that the testimony of Shree and Greg lacks reliability because they could not remember exactly when their conversation with Richard took place and they did not have any proof that the gun Richard showed them was actually the murder weapon. Jeremiah also calls into question the fact that Shree and Greg were questioned and added as State witnesses only a week before trial.
Our review of the evidence viewed in the light most favorable to the State supports Jeremiah's conviction for first-degree murder. Contrary to Jeremiah's argument, there is direct evidence supporting the conviction. K'Naya, who testified that she knew both Jeremiah and Cameron, unequivocally stated that she witnessed Jeremiah walk up behind Cameron with a black gun and shoot him in the back and that he immediately fell to the ground where blood pooled around him. Other witnesses confirmed that K'Naya had been playing near the area where the shooting occurred. Keet also testified that Jeremiah shot Cameron with a black gun. The medical examiner testified that Cameron died from a gunshot wound on the right side of his neck. Police found a gun-shell casing near Cameron's body, and forensics confirmed that it was fired from a nine-millimeter gun. Finally, two witnesses testified that a year after the shooting, Jeremiah's father showed them a black gun (Greg said it looked like a nine-millimeter gun) and said that it was the murder weapon for which the police were looking. This is substantial evidence to support Jeremiah's conviction for first-degree murder. Any inconsistencies in the testimony of the witnesses go to the weight of the evidence. It is within the province of the trier of fact, not the reviewing court, to weigh the evidence and assess the credibility of witnesses. Gill v. State , 2010 Ark. App. 524, at 2, 376 S.W.3d 529, 531. Inconsistent testimony does not render proof insufficient as a matter of law. Id. , 376 S.W.3d at 531. Therefore, we affirm Jeremiah's first point on appeal.
Jeremiah's second point on appeal challenges the sufficiency of the evidence supporting his conviction for possession of a firearm by certain persons. He argues that the State failed to produce the murder weapon and that the testimony of K'Naya and Keet is questionable, as explained above.
Arkansas Code Annotated section 5-73-103(a)(1) (Repl. 2016) states, in relevant part, that subject to certain limitations that are not applicable in this case, no person shall possess or own a firearm who has been convicted of a felony. "Possess" means to exercise actual dominion, control, or management over a tangible object. Ark. Code Ann. § 5-1-102(15) (Repl. 2013).
In this case, K'Naya testified that she saw Jeremiah shoot Cameron with a black gun. Keet testified that Jeremiah had a black gun in his pocket when he walked up to Cameron. Keet said that Jeremiah shot Cameron and then "tuck[ed] the gun" and ran away. Viewed in the light most favorable to the State, this is substantial evidence to support Jeremiah's conviction for possession of a firearm by certain persons. Again, any inconsistencies in the testimony of the witnesses go to the weight of the evidence. It is within the province of the trier of fact, not the reviewing court, to weigh the evidence and assess the credibility of witnesses. Gill , 2010 Ark. App. 524, at 2, 376 S.W.3d at 531. Inconsistent testimony does not render proof insufficient as a matter of law. Id. , 376 S.W.3d at 531. We affirm Jeremiah's second point on appeal.
Affirmed.
Virden and Gladwin, JJ., agree.
The medical examiner, Charles Kokes, testified that he performed the autopsy of Cameron. Dr. Kokes stated that Cameron had a gunshot entrance wound on the right side of his neck, which was the cause of his death. Dr. Kokes said that the manner of death was homicide.
The record reflects that Shree stated on direct examination that the conversation took place on July 23, 2016; however, on cross-examination, she stated it took place on June 23, 2016. Greg testified that the conversation took place in May, June, or July 2016.
Shakorey was also charged with capital murder in connection with Cameron's death. | [
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RAYMOND R. ABRAMSON, Judge
Deborah Diann Gunter appeals the Arkansas Workers' Compensation Commission's (Commission) denial of her claim that she sustained a compensable cervical spine injury while working at Bill's Super Foods (Bill's). She argues that substantial evidence does not support the Commission's finding and that she should be entitled to additional medical treatment, specifically in the form of surgery as prescribed by Dr. Wayne Bruffett. For the following reasons, we affirm.
Gunter appeals the Commission's June 9, 2017 opinion and order that affirmed the administrative law judge (ALJ)'s decision finding that Gunter failed to prove she sustained a work-related neck or back injury. Gunter and her supervisor, Douglas Heise, were the only two witnesses to testify at the hearing before the ALJ. Gunter testified that before going to work at Bill's, she had worked as a cook in a restaurant, was a daycare teacher, performed patient administration, and was a dispatcher in Faulkner County.
At Bill's, she initially worked at the deli, where she was responsible for cooking, cleaning, and serving customers. She remained in that position for a year and a half. She then began working as a cashier where her job duties included checking people out and getting items, such as 50-pound bags of dog food and 5-gallon buckets of chicken, in and out of carts.
Gunter maintains that she injured herself while picking up a 50-pound bag of dog food on January 20, 2015, and testified at the hearing, "I was checking someone out, and they had put that big-the bag up under the buggy on the bottom, and I-when I pick it up, I thought that I felt a muscle pull. It was just a sudden pull. It was like a-just-I woke up the next morning stiff, so I figured it was a pulled muscle." Gunter admitted that she did not say anything to her supervisor and continued to work; she also conceded that she had undergone disc surgery a decade before, in 2005, that was unrelated to her work duties at Bill's.
Gunter testified that she continued to work but that her condition worsened, so she went to see her primary-care physician, Dr. Mark Vice, on or about February 9, 2015. Gunter had an MRI, and Dr. Vice took her off of work and she eventually started receiving workers'-compensation benefits. She was also referred to Dr. Amir Qureshi, a pain-management specialist, who started her on shots. Gunter testified that the shots worked for about a month but that they burned her nerve endings, so she then went to see Dr. Bruffett who recommended surgery.
Douglas Heise, Gunter's supervisor and the store manager of Bill's, testified that Gunter never reported a specific incident involving picking up a bag of dog food prior to coming to him about getting an MRI in February 2015. Heise testified that Gunter had complained about back pain from time to time but that she had not said anything to him about those problems being related to a specific incident at work until she came to him about the MRI. Heise stated that Gunter had worked for him for a couple of years and that she was a good employee who did a good job.
The medical evidence shows that Dr. Vice's February 9, 2015 report is the first medical report after her alleged injury date. In that report under the "History of Present Illness" section, Gunter provided information that her problems had started one month before to her February 9 visit, and there was no mention of a specific incident involving dog food. Dr. Vice did not report a work-related accidental injury or otherwise attribute his diagnosis of cervical radiculopathy to Gunter's employment at Bill's. When Gunter had her MRI done ten days later, on February 19, 2015, she informed Baptist Imaging that she had been experiencing symptoms in her cervical spine for several months. The Commission found there was no probative evidence to demonstrate that the condition shown on the MRI was causally related to an accidental injury that Gunter alleges occurred on January 20, 2015.
Dr. Bruffett saw Gunter on May 6, 2015, and recommended additional diagnostic testing in preparation for surgery. It is within the Commission's province to weigh all of the medical evidence and to determine what is most credible. Minnesota Mining & Mfg. v. Baker , 337 Ark. 94, 989 S.W.2d 151 (1999). Here, the Commission found that Dr. Bruffett's treatment recommendation was based on the history provided by Gunter, and that history was not supported by the record and was not credible. The Commission "therefore placed minimal evidentiary weight on Dr. Bruffett's findings." The Commission found that Gunter did not prove by a preponderance of the evidence that she sustained a compensable injury and that she did not prove an accidental injury causing physical harm to the body. The Commission also found that Gunter did not prove that she sustained an injury caused by a specific incident or identifiable by time and place of occurrence on January 20, 2015, and further found that Gunter was not a credible witness. Accordingly, the Commission then denied and dismissed Gunter's claim. The sole issue on appeal is whether substantial evidence supports the Commission's finding.
Arkansas law permits the Commission to adopt the ALJ's opinion. Stoker v. Thomas Randal Fowler, Inc. , 2017 Ark. App. 594, 533 S.W.3d 596. When the Commission adopts the ALJ's opinion, it makes the ALJ's findings and conclusions its findings and conclusions, and for the purpose of appellate review, we consider both the ALJ's opinion and the Commission's majority opinion. Id.
When the Commission denies benefits because a claimant has failed to meet his or her burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission's decision displays a substantial basis for the denial of relief. Fulbright v. St. Bernard's Med. Ctr. , 2016 Ark. App. 417, 502 S.W.3d 540. On appeal, the appellate court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence, which is evidence that a reasonable mind might accept as adequate to support a conclusion. Jones v. Target Corp. , 2017 Ark. App. 199, 518 S.W.3d 119.
The issue on review is not whether the evidence would have supported a contrary finding or whether we might have reached a different result; we affirm if reasonable minds could reach the Commission's conclusion. Bennett v. Tyson Poultry, Inc. , 2016 Ark. App. 479, 504 S.W.3d 653. We defer to the Commission on issues involving credibility and the weight of the evidence. Frost v. City of Rogers , 2016 Ark. App. 273, 492 S.W.3d 875.
To prove a compensable injury as a result of a specific incident that is identifiable by time and place of occurrence, the claimant must establish by a preponderance of the evidence (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external harm to the body that required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Arkansas Code Annotated section 11-9-102(16) (Repl. 2012), establishing the injury; and (4) that the injury was caused by a specific incident identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i).
Here, we agree with the Commission's decision that Gunter did not satisfy her statutory burden of proof. She failed to establish the existence of any cervical spine injurythat occurred while working at Bill's. As noted above, a compensable injury must be established by medical evidence supported by objective findings. See Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012). "Objective findings" are those findings which cannot come under the voluntary control of the patient. The employee has the burden of proving by a preponderance of the evidence that she sustained a compensable injury. Preponderance of the evidence means the evidence having greater weight or convincing force. Metropolitan Nat'l Bank v. La Sher Oil Co. , 81 Ark. App. 269, 101 S.W.3d 252 (2003).
With these standards in mind, we hold that there is a substantial basis for the Commission's denial of Gunter's claim. There is no indication in Gunter's medical records that her injury was due to a work-related incident. She had no witness to corroborate her story about the alleged cause of her neck or back problems. Gunter never reported any alleged work-related incident to her supervisor, Douglas Heise, until her doctor sent her for an MRI almost a month after she claims the alleged incident occurred. Because there is a rational basis for the Commission's denial of Gunter's claim, we affirm.
Affirmed.
Glover and Murphy, JJ., agree. | [
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N. MARK KLAPPENBACH, Judge
Appellant Norman Ray Bullock was convicted by a jury in Prairie County Circuit Court of first-degree murder of his wife, Dayla Bullock, for which he was sentenced to ten years in prison. Appellant argues on appeal that the trial court erred (1) in denying his motions for directed verdict because there was insufficient evidence to corroborate the testimony of his daughter, April Bullock, who appellant contends was an accomplice and was not a credible witness and (2) in denying his motion for a mistrial. Appellant's first point on appeal is not preserved for appellate review, and his second point on appeal holds no merit. We therefore affirm.
After the State presented its case-in-chief, defense counsel moved for directed verdict "for the State's failure to prove their case." Defense counsel recited that appellant was charged with first-degree murder, which required the State to prove the following beyond a reasonable doubt:
That [with] the purpose of causing the death of Dayla Bullock, Norman Bullock caused the death of Dayla Bullock. We say the State has failed to meet a prima facie case on that.
Appellant's attorney did not renew this motion until after the jury had rendered a guilty verdict, while the jury was deliberating on what sentence to impose. At that time, defense counsel stated to the trial court:
I screwed up on this, in that when we closed, I didn't re-do my motions. I don't know if it's going to be any good at this point, but I want to go ahead and put those on the record and re-do my motions.
Defense counsel's renewed motion for a directed verdict was denied. Thereafter, the jury returned to open court and rendered the ten-year prison sentence.
On appeal, appellant contends that there was insufficient evidence to support the incriminating testimony of his adult daughter, April Bullock. Appellant specifically argues that April was an accomplice whose testimony was required to be corroborated. Appellant also argues that April suffers from mental-health issues, her testimony was not compatible with the physical evidence, and her testimony was not credible. We do not reach these arguments because appellant failed to preserve his arguments for appellate review.
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Snider v. State , 2010 Ark. App. 694, 378 S.W.3d 264. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, either direct or circumstantial; evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence supporting the verdict. Id. A jury is free to believe all or part of a witness's testimony, and we do not weigh the credibility of witnesses on appeal-that is a job for the finder of fact, not the appellate court. Foster v. State , 2017 Ark. App. 63, 510 S.W.3d 782. Arkansas law is clear that a conviction cannot be had in any case of felony on the testimony of an accomplice unless it is corroborated by other evidence tending to connect the defendant with the commission of the offense. Procella v. State , 2016 Ark. App. 515, 504 S.W.3d 686.
In order to make these challenges on appeal, however, appellant was required to strictly comply with Arkansas Rule of Criminal Procedure 33.1 (2017), which mandates the content and timing of directed-verdict motions at trial. Appellant failed to comply with Rule 33.1. First, appellant's initial motion was too general and lacked any specific challenge to the State's proof, as required by Ark. R. Crim. P. 33.1(a) and (c). Second, appellant's motion did not mention credibility of witnesses, nor did it mention the requirement of corroboration of accomplice testimony. An appellant is bound by the scope and nature of the arguments raised at trial. Stewart v. State , 2012 Ark. 349, 423 S.W.3d 69 ; Brewer v. State , 2017 Ark. App. 119, 515 S.W.3d 629. And third, even if the initial motion contained the necessary specificity and included these arguments, appellant failed to renew the motion for directed verdict at the appropriate time, as required by Ark. R. Crim. P. 33.1(a) and (c) (at the close of the State's case and renewed at the close of all the evidence). Appellant's attorney admittedly waited until it was too late, presenting the renewal after the jury had begun deliberating on his sentence, which was after the jury had already found him guilty of first-degree murder. See Cathey v. State , 351 Ark. 464, 95 S.W.3d 753 (2003). We are therefore precluded from reaching appellant's sufficiency-of-the-evidence arguments on appeal.
Appellant's other point on appeal asserts that the trial court erred by denying his motion for a mistrial. Appellant contends that during a recess in jury selection, the prospective jurors could have seen a State's witness (investigating officer Duerson) walk out of the trial judge's chambers, which opens into the general courtroom. Appellant asserted that this gave the appearance of impropriety that deprived appellant of a fair trial; appellant did not move for the trial judge's recusal. Appellant asserted that there was no jury instruction that could cure the issue because it would only emphasize that a State's witness was having a discussion in the judge's chambers. In denying the motion, the trial judge stated that he would ask the prospective jurors in order to determine if anyone had seen anyone in or leaving the judge's chambers.
The trial judge stated the following in open court to the potential jurors:
During the recess, I'd like to know if any of you saw anyone enter my office or leave my office? If you do, would you please stand up? If you saw anybody enter or leave my office. Okay. No one is standing up. So the record will reflect that no one here is asserting that they saw anybody enter or leave my office. Did anybody see anyone in my office? And when I refer to my office, I'm referring to the room that says Judge's Chambers that I'm pointing to. Did anybody pay any attention to that room
whatsoever? You were just trying to get out of the courtroom I assume. Okay. But if anybody saw anybody in that office other than me, will you please stand up. Okay, sir, did you see anybody besides lawyers enter my office? [Potential juror Mark Ingle answered "no."] Thank you, sir. Very good. I appreciate it. Anybody else see anybody enter the office other than attorneys? Thank you very much.
On appeal, appellant argues that Duerson's leaving the judge's chambers while potential jurors were in the courtroom created the appearance of impropriety necessitating a mistrial. We disagree.
A mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when fundamental fairness of the trial has been manifestly affected. McClinton v. State , 2015 Ark. 245, 464 S.W.3d 913 ; Moore v. State , 355 Ark. 657, 144 S.W.3d 260 (2004). Declaring a mistrial is proper only when the error is beyond repair and cannot be corrected by any curative relief. McClinton, supra. The judge presiding at trial is in a better position than anyone else to evaluate the impact of any alleged errors. Id. Therefore, the trial court has wide discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for abuse of that discretion or manifest prejudice to the complaining party. Id.
Here, no prospective juror saw Duerson inside or leaving the judge's chambers. Duerson's identity was not revealed to the jurors in the trial court's questioning. Appellant simply cannot show any prejudice. Moreover, the jury was subsequently given Arkansas Model Criminal Jury Instruction 101(f):
I [the trial judge] have not intended by anything I have said or done, or by any questions that I may have asked, to indicate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who testified. If anything that I have done or said has seemed to so indicate, you will disregard it.
In reviewing a mistrial motion, we look at all developing circumstances that surround an incident to determine whether a manifest abuse of discretion occurred. Worsham v. State , 2017 Ark. App. 702, 537 S.W.3d 789, 2017 WL 6376085. Looking at all the circumstances present here, we hold that the trial court's discretion was not abused and that appellant was not deprived of a fair trial.
Affirmed.
Virden and Murphy, JJ., agree.
Appellant admittedly did not proffer a jury instruction concerning the subject of accomplices, and the jury was not instructed in any way on the subject of accomplices. | [
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MIKE MURPHY, Judge
Appellant Michael Mercouri appeals after the Pulaski County Circuit Court entered an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. For reversal, he contends that the circuit court erred because trial counsel was constitutionally ineffective (1) for failing to present a defense; (2) for failing to present evidence sufficient to call for a jury instruction on a lesser included offense; (3) for failing to seek the removal of a juror for cause; and (4) because appellate counsel was ineffective on Mercouri's behalf in his direct appeal. We affirm.
A. Relevant History
The supreme court explained the incident that led to this charge in Mercouri v. State , 2016 Ark. 37, at 1-2, 480 S.W.3d 864, 865.
In April 2013, Kelvin Perry, the general manager of Aaron's in North Little Rock, was leaving work for lunch and to make a deposit at the bank. As he was walking through the Aaron's parking lot, he heard someone yell his name. Perry saw Mercouri, a former temporary employee, sitting in his vehicle. Perry recognized Mercouri and walked over to him. Mercouri inquired why Perry had not asked him to work lately. Perry responded that he did not need any additional help. Mercouri then reached down, pulled out a gun, and placed it on his lap. Perry "didn't think anything of it" until Mercouri grabbed him by the sleeve of his jacket, tried to pull him through the car window, and said "[G]ive me your money." Mercouri grew angry and pointed the gun toward Perry when Perry responded that he did not have any money. Mercouri ordered Perry to get in the back seat of the vehicle. Perry opened the back door of the vehicle but, instead of getting in, he suddenly ran across the street. Mercouri immediately left the scene, and Perry called the police.
A Pulaski County jury convicted Mercouri of aggravated robbery and sentenced him to ten years' imprisonment in the Arkansas Department of Correction (ADC). On appeal, he contended sufficient evidence did not support the conviction. Our supreme court affirmed without reaching the merits because appellate counsel's specific argument was not preserved. Additionally, the court affirmed the denial of his motion to set aside his guilty verdict.
On April 22, 2016, Mercouri filed a properly verified petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. On December 14, 2016, without holding an evidentiary hearing, the circuit court denied Mercouri's petition in an eleven-page order. The circuit court denied relief on his first claim that counsel was ineffective for failing to investigate the case and present a coherent defense, stating that the vague allegation of general ineffectiveness does not offer specifics that could be analyzed under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1994)'s two prongs. The court denied relief on Mercouri's second claim that counsel was ineffective for failing to present evidence sufficient to warrant a jury instruction on the lesser-included offense of robbery. The court explained that Mercouri offered no other theoretical way that his attorney could have created a rational inference that there was no gun other than his own testimony; when Mercouri was asked directly if he wanted to testify, he responded that he did not. The court denied relief on his third claim that a juror-who expressed reservations during voir dire about a defendant who did not testify on his own behalf-should have been excused for cause. The court explained that although she (the juror) initially indicated she might have reservations, counsel pressed her further, and she stated on the record that she could be fair and afford the defendant the presumption of innocence and the right to remain silent. The court denied relief on Mercouri's final claim that his appellate counsel was ineffective in his direct appeal. Mercouri argued his counsel abandoned any and all other potentially meritorious issues and instead presented an argument "that was clearly not preserved for appeal." The court stated that Mercouri's speculation that there were other issues that could have been raised on appeal might be correct, but without identifying them specifically, the court could not apply the case law to them.
This timely appeal followed.
B. Standard of Review
We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Vaughn v. State , 2017 Ark. App. 241, at 7, 519 S.W.3d 717, 721. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.
Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Vaughn , 2017 Ark. App. 241, at 7, 519 S.W.3d at 721. In asserting ineffective assistance of counsel under Strickland , the petitioner must first demonstrate that counsel's performance was deficient. Sartin v. State , 2012 Ark. 155, 400 S.W.3d 694. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel that when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel's errors were so serious as to deprive the petitioner of a fair trial. Vaughn , supra. This requires the petitioner to show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. We also recognize that "there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one." Anderson v. State , 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland , 466 U.S. at 697, 104 S.Ct. 2052 ).
If the circuit court determines that the petitioner is entitled to no relief based on the petition, files, and records, then the petitioner is not entitled to an evidentiary hearing. Ark. R. Crim. P. 37.3(a). In such cases, the circuit court should provide sufficient written findings of fact to illustrate that the petitioner's claims are meritless. Boyd v. State , 2017 Ark. App. 592, at 11-12, 534 S.W.3d 732. Our review indicates that the petition, files, and records conclusively show that Mercouri is not entitled to postconviction relief. As such, we hold that the circuit court was not obligated to hold an evidentiary hearing before denying Mercouri's petition as wholly without merit.
C. Issues on Appeal
As a preliminary matter, we first address Mercouri's submission that this case should be governed by United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), rather than Strickland . In Cronic , the Supreme Court held, "Only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial." Id. at 667, 104 S.Ct. 2039. Mercouri only generally asserts that Cronic should apply and fails to establish what "surrounding circumstances" justify a presumption of ineffectiveness. We decline to follow this reasoning and evaluate this case under Strickland .
D. Coherent Defense
We now turn to Mercouri's first point on appeal that trial counsel had no coherent defense strategy and that "counsel basically did nothing." To support his claim, Mercouri relies on the following dialogue that took place after his directed verdict motion had been denied and after he requested a jury instruction on the lesser-included offense of robbery:
THE COURT : And what, what defense are you putting forth for Mr. Mercouri? That this event didn't happen at all or that it happened, and it's just a misunderstanding?
MR. LITTLEJOHN : Well, it was a-The
THE COURT : I'm not clear.
MR. LITTLEJOHN : -general denial, potentially a misunderstanding, and also we were trying to get back what was [Unintelligible] in there. So, those are the-
THE COURT : So, you're denying, your defense is you're denying the event happened?
MR. LITTLEJOHN : Yes. Well, denying that he had a gun or denying that the event happened as it's stated. I mean, there may have been an event where he drives up and says can I have a word?
THE COURT : Well, and I understand what may, what may have happened, but at this point you've got to, you've got to go forward on some theory. All I've got before me is the State's witnesses and your questioning to those.
MR. LITTLEJOHN : Right.
THE COURT : And based on the questions you asked the witnesses, I'm not clear whether or not your argument is that this never happened at all or whether your argument is there was a discussion between the victim and the Defendant, and there was a misunderstanding about what that conversation was.
MR. LITTLEJOHN : Well, again, I would start by saying that it didn't happen at all, but if it did happen, it didn't happen the way that he says it happened.
THE COURT : All right.
MR. LITTLEJOHN : There wasn't a gun, and there wasn't.
THE COURT : I, I will show that your request for the lesser included is denied and that it is marked and proffered.
MR. LITTLEJOHN : Okay.
As he argued below to the circuit court in his Rule 37 petition, Mercouri alleges that this dialogue establishes that the circuit court itself could not determine what the defense was. Mercouri goes on to reason that if the circuit court was confused, then the jury likely did not understand.
However, in its order, the circuit court explained that this exchange was solely an inquiry regarding the requested jury instruction for the lesser-included offense of simple robbery and that trial counsel did present a defense of general denial. Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel's professional judgment and are not grounds for a finding of ineffective assistance of counsel. Anderson v. State , 2015 Ark. 18, at 8, 454 S.W.3d 212, 218. While a better strategy may seem apparent to Mercouri now, judicial review of trial counsel's performance is highly deferential, and Mercouri fails to offer evidence that counsel's approach was objectively unreasonable. Moreover, his contention that "counsel basically did nothing" fails because, as the circuit court explained in its order,
The Defendant's attorney presented an opening statement, subjected the State's witnesses to cross-examination, offered a Motion for Directed Verdict, attempted to influence the Court to instruct the jury on a lesser-included-offense, offered closing statements to the jury, and presented testimony on the Defendant's behalf in the sentencing phase of the trial.
Mercouri has unsuccessfully established how counsel's performance was deficient.
E. Jury Instructions
For his second point on appeal, Mercouri contends that trial counsel was ineffective for failing to present evidence sufficient to warrant a jury instruction on simple robbery under Ark. Code Ann. § 5-12-102 (Repl. 2013). He relies on his above argument that counsel presented no defense, so the circuit court had no choice but to deny counsel's request to offer the jury instruction. The circuit court held in its order that counsel was not ineffective because in Mercouri's petition he offered no other theoretical way that counsel could have created a rational inference that there was no gun. Mercouri's own testimony could have created a rational inference, but when the court asked him directly if he wished to testify, Mercouri said he did not. We agree with the circuit court's line of reasoning.
In Walden v. State , the Arkansas Supreme Court found that trial counsel was not ineffective for failing to obtain a jury instruction on the lesser-included offense of simple robbery because there was conclusive evidence of aggravated robbery. 2016 Ark. 306, at 4, 498 S.W.3d 725, 729. The charge of aggravated robbery against Walden arose from an incident at a bank in which Walden handed a teller a bag with a note that said, "This is a robbery. I have a gun. Give me all your money," when in fact there was no gun. Id. at 3, 498 S.W.3d at 729. The court explained it did not need to reiterate the discussion that substantial evidence supported the verdict on appeal and instead focused on the fact that the appellant did not establish that there was a reasonable probability that the outcome of his trial would have been different had the lesser-included-offense instruction been given or that the court of appeals would have reversed the judgment had there been a proffer of the instruction. Id. at 4, 498 S.W.3d at 729.
Unlike Walden , counsel did proffer the instruction, but Mercouri fails to establish a reasonable probability that the outcome of his trial would have been different had the circuit court given the lesser-included-offense instruction. Mercouri focuses his argument on his contention that counsel failed to present any evidence and that he should have called Mercouri to testify on his own behalf to explain that either no gun had been used or that no threats had been made. However, Mercouri first fails to explain what other evidence counsel could have presented, and he fails to elucidate what specific testimony he would have given to provide a rational basis for the lesser-included-offense instruction had he been called a witness.
The Supreme Court of the United States has held that a criminal defendant has a right to testify on his or her own behalf if he or she chooses to do so. Rock v. Ark. , 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Counsel may only advise the accused in making the decision. The supreme court has consistently held, however, that the mere fact that a defendant did not testify is not, in and of itself, a basis for postconviction relief. See, e.g. , Dansby v. State , 347 Ark. 674, 66 S.W.3d 585 (2002). Ordinarily, counsel's advice to the defendant not to testify is simply a matter of trial strategy. Walden , 2016 Ark. 306, at 5-6, 498 S.W.3d at 730. While it is clear that the right to testify is a fundamental right that may only be exercised by the defendant, neither this court nor the Supreme Court of the United States has held that a record must be made evincing a defendant's waiver of his or her right to testify and that failure of counsel to have his or her client make the declaration on the record does not constitute ineffective assistance of counsel. Id.
On the contrary, Mercouri was asked directly on the record whether he wished to testify, and he said no. He argues that counsel should have discussed with him that his testimony could make the difference between a conviction for aggravated robbery and simple robbery. However the record reflects that Mercouri potentially had prior convictions in California, which could have been used to impeach him had he testified. Counsel is allowed great leeway in making strategic and tactical decisions, particularly when deciding not to call a witness, and it is clear counsel did not want to risk putting Mercouri on the stand. See Williams v. State , 2016 Ark. 459, at 3, 504 S.W.3d 603, 605. Also, during cross-examination, trial counsel elicited testimony from the responding officer that no firearm was recovered. Thus, Mercouri fails to meet the first prong of Strickland that counsel lacked reasonable professional judgment. Counsel did the best he could with what he had.
Moreover, as to Mercouri's contention that this case is unlike most aggravated-robbery cases, the allegation was essentially an assertion that the evidence was not sufficient to sustain the judgment that he committed an aggravated robbery. Rule 37.1, however, does not provide a means to challenge the sufficiency of the evidence merely because the petitioner has raised the challenge in the guise of an allegation of ineffective assistance of counsel. Walden, supra.
C. Removal of Juror
For his third point on appeal, Mercouri asserts that trial counsel was ineffective for failing to seek the excusal of juror Debra Delreal for cause. During voir dire, juror Delreal initially expressed reservations about a defendant who did not take the stand on his or her own behalf. Trial counsel inquired further, and this exchange followed:
MR. LITTLEJOHN : Okay. So, you, so you think-You think that just about anybody should be able to maintain their and prove their innocence despite the fact that Sean is a fabulous prosecutor?
MRS. DELREAL : In a way.
MR. LITTLEJOHN : Well, in what way? Let's, let's hear it.
MRS. DELREAL : Okay. There's always-
MR. LITTLEJOHN : Mrs. Delreal, right?
MRS. DELREAL : Yes.
MR. LITTLEJOHN : Okay.
MRS. DELREAL : There's always-I work at a school. I'm a paraprofessional. So, I hear stories all day long from children and adults, too, but there's-You just have that gut instinct that you have to go by, either looking in their eyes or what have you, that's gonna tell you whether or not they're telling the truth. I have a very good one cause I've dealt with children for so long and adults. So, and they're all special needs. So, I just-I go with my gut.
MR. LITTLEJOHN : Okay. So, your gut would find anyone who elected silence in the face of accusations of a crime, your gut would tell you that they're guilty?
MRS. DELREAL : No, not necessarily.
MR. LITTLEJOHN : Okay. Well, that's a little different than I guess what you were saying before which was-
MRS. DELREAL : Yes.
MR. LITTLEJOHN : You have to have both sides, or you would be-Are you gonna be inherently skeptical of someone that would remain silent, elects to remain silent?
MRS. DELREAL : No, not really.
MR. LITTLEJOHN : Are you still gonna-
MRS. DELREAL : I may have some questions.
MR. LITTLEJOHN : Well, yeah, and you probably will have some questions today. Again, I mean, as Sean pointed out, we're not gonna-
MRS. DELREAL : Right.
MR. LITTLEJOHN : -be able to answer all your, all your doubts, all your questions. There may be some that linger.
MRS. DELREAL : Yeah. I may have a question or two, but I think I can be fair.
In its order, the court held that Delreal stated on the record that she could be fair and afford the defendant the presumption of innocence. The circuit court thus found that Mercouri did not meet his burden of proving that the juror was actually biased against him. We agree.
This court will not label counsel ineffective merely because of possible bad tactics or strategy in selecting a jury. See Echols v. State , 354 Ark. 530, 127 S.W.3d 486 (2003). Jurors are presumed unbiased and qualified to serve. Id. To prevail on an allegation of ineffective assistance of counsel with regard to jury selection, a petitioner first has the heavy burden of overcoming the presumption that jurors are unbiased. Howard v. State , 367 Ark. 18, 36-37, 238 S.W.3d 24, 39 (2006). To accomplish this, a petitioner must demonstrate actual bias, and the actual bias must have been sufficient to prejudice the petitioner to the degree that he or she was denied a fair trial. Id. Bare allegations of prejudice by counsel's conduct during voir dire that are unsupported by any showing of actual prejudice do not establish ineffective assistance of counsel. Id.
Mercouri points to Delreal's initial uncertainty regarding a defendant who does not testify. Indeed, defense counsel pressed the issue further, and Delreal admitted she could be impartial. Prospective jurors who state that they can lay aside prior impressions or opinions and render a verdict based on the evidence presented at trial are qualified to serve as jurors. Butler v. State , 2011 Ark. 435, 384 S.W.3d 526.
D. Direct Appeal
For his final point on appeal, Mercouri argues that his appellate counsel was ineffective in the direct appeal because he "abandoned any and all other potentially meritorious issues and presented a sufficiency-of-the-evidence argument that was clearly not preserved for appeal."
A petitioner who claims that appellate counsel was ineffective bears the burden of making a clear showing that counsel failed to raise some meritorious issue on appeal. State v. Rainer , 2014 Ark. 306, at 13, 440 S.W.3d 315, 323. Counsel's failure to raise a specific issue must have amounted to error of such magnitude that it rendered appellate counsel's performance constitutionally deficient under the Strickland criteria. The petitioner must show that there could have been a specific issue raised on appeal that would have resulted in the appellate court's declaring reversible error. Id. It is petitioner's responsibility to establish that the issue was raised at trial, that the circuit court erred in its ruling on the issue, and that an argument concerning the issue could have been raised on appeal to merit appellate relief. Frazier v. State , 2016 Ark. 55, at 8-9, 482 S.W.3d 305, 312. Here, Mercouri first argues that appellate counsel was ineffective for "winnowing out the stronger arguments and focusing on one that had absolutely no chance of success" on appeal. Such speculative allegations are not sufficient to establish a claim for relief under a theory that counsel was ineffective on direct appeal.
Additionally, Mercouri alleges that his appellate counsel was ineffective for failing to argue on appeal that the circuit court erred by not instructing the jury on the lesser-included offense of simple robbery. Unlike the previous contention, Mercouri argues that, at a minimum, this issue would have been preserved for appeal. He explains that there was a rational basis for the argument because the verdicts were inconsistent in that the jury found that he had not employed a firearm for purposes of the firearm enhancement but found him guilty of aggravated robbery, which requires a finding that he was armed with a deadly weapon. As previously mentioned, it is petitioner's responsibility to establish that "the issue was raised at trial, that the circuit court erred in its ruling on the issue, and that an argument concerning the issue could have been raised on appeal to merit appellate relief. " Rainer , 2014 Ark. 306, at 13, 440 S.W.3d at 323 (emphasis added). While the issue was preserved, Mercouri fails to convince us how he could have prevailed with this issue on appeal. The supreme court addressed this inconsistency argument in the direct appeal. There, the court affirmed, explaining,
Although Mercouri is correct that the two verdicts appear inconsistent, it is well settled that a defendant may not attack his conviction on the basis of its repugnancy. Jordan v. State , 323 Ark. 628, 631, 917 S.W.2d 164, 165 (1996). "A jury may convict on some counts but not on others, and may convict in different degrees on some counts, because of compassion or compromise, and not solely because there was insufficient evidence of guilt." Id. The jury is free to exercise lenity if it believes that a conviction on one count would provide sufficient punishment.
Mercouri , 2016 Ark. 37, at 4, 480 S.W.3d at 867.
Mercouri fails to explain why this conclusion was wrong and how his argument would have had merit.
F. Conclusion
Under the circumstances, and considering the totality of the evidence as a court must do under Strickland , we cannot say that the trial court clearly erred in finding that Mercouri did not demonstrate ineffective assistance of counsel.
Affirmed.
Virden and Klappenbach, JJ., agree.
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N. MARK KLAPPENBACH, Judge
Appellant Sherita King appeals the May 10, 2017 sentencing order issued by the Pulaski County Circuit Court that revoked her probation. The trial court based its decision to revoke on a district court docket sheet showing that King pleaded guilty to the misdemeanor charge of public intoxication. King argues on appeal that the trial court erred in refusing to dismiss the revocation petition because the docket sheet did not demonstrate that her guilty plea was made while represented by defense counsel. We reverse and dismiss.
King was originally placed on probation in 2011 for being in possession of PCP, which is the drug phencyclidine. One of the conditions of her probation was that she not violate any federal or state law. On September 30, 2016, King was arrested in North Little Rock and charged with public intoxication. On October 3, 2016, the State filed a petition to revoke her probation based on that violation. In hearings conducted in November 2016 and January 2017, King told the circuit court that she had "pled guilty" to the public-intoxication charge and that she was represented by a "public defender." King could not remember the name of the attorney, but her defense counsel stated that it "should have been Terry Ballard."
At the revocation hearing conducted in March 2017, the State entered into evidence the North Little Rock District Court docket sheet as proof of her guilty plea to public intoxication. The docket sheet documented that King was charged with public intoxication on September 30, 2016; that on the same date King was released from jail on her own recognizance; that on October 4, 2016, King pleaded guilty and the trial court found her guilty; and that District Judge Jim Hamilton sentenced her to "Fine Plus Court Cost And Fines Given Credit Time Served." The docket noted the presence of Lauren Eldridge on behalf of the prosecutor, but it was silent as to whether King was represented by counsel.
At the revocation hearing, the State did not make reference to any of the comments that King had made in earlier hearings about the public-intoxication matter, nor did the State ask the trial court to take judicial notice of those prior comments. The State did not present testimonial or other evidence to prove that King was, in fact, guilty of public intoxication. King did not testify. Defense counsel argued to the trial court that it should dismiss this revocation petition because there was no proof that King had been represented by counsel when she entered the guilty plea in district court. The trial court rejected defense counsel's argument, remarking that it was left with the State's exhibit showing a district court finding of guilty, from which King had not appealed. The trial court acknowledged, however, that the docket sheet was "silent" so that it had no idea whether King had been represented at the district court proceedings. The trial court granted the State's petition to revoke, and King was sentenced to three years of supervised probation with random drug screens. This timely appeal followed.
The law on this topic is well settled. In order to revoke a probation or a suspended imposition of sentence, the circuit court must find by a preponderance of the evidence that the defendant has inexcusably violated a condition of the probation or suspension. Ark. Code Ann. § 16-93-308(d) (Supp. 2017). Thus, to sustain a revocation, the State need show only that the defendant committed one violation. Prackett v. State , 2014 Ark. App. 394, 2014 WL 3642214. Evidence that may not be sufficient to convict can be sufficient to revoke due to the lower burden of proof required for revocation. Newborn v. State , 91 Ark. App. 318, 210 S.W.3d 153 (2005). A circuit court's finding in revocation proceedings will not be reversed on appeal unless it is clearly against the preponderance of the evidence. Id. Because the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the superior position of the trial court to decide these matters. Mosley v. State , 2016 Ark. App. 353, 499 S.W.3d 226.
King argues on appeal that her probation could not be revoked on the basis of her guilty plea to public intoxication absent proof that she was either represented by counsel or waived her right to counsel at the district-court level. King relies on Alexander v. State , 258 Ark. 633, 527 S.W.2d 927 (1975), as controlling authority on that point. In Alexander , the Arkansas Supreme Court held that:
[A]n uncounseled municipal court conviction cannot be used for the purpose of revoking a suspended sentence as the net effect thereof is "the actual deprivation of a person's liberty" without "the guiding hand of counsel." Of course, this does not mean that the responsible officials cannot show that the facts giving rise to the municipal court conviction are sufficient themselves to revoke the suspended sentence.
Alexander v. State , 258 Ark. 633, 637, 527 S.W.2d 927, 930 (1975). The State responds that King stated in an earlier hearing that she had been represented by a public defender when she pleaded guilty in district court, so "that should end the matter." The State further argues that this situation is akin to using uncounseled misdemeanor convictions for purposes of enhancing a sentence, which is permitted under Arkansas law. See Davis v. State , 330 Ark. 76, 953 S.W.2d 559 (1997). We hold that King has presented reversible error in this case.
Our court has recognized the principles of law recited in Alexander. See , e.g. , Aikens v. State , 2014 Ark. App. 168, 2014 WL 988920 ; Dugan v. State , 2009 Ark. App. 402, 2009 WL 1406653 ; Haley v. State , 96 Ark. App. 256, 240 S.W.3d 615 (2006). In Aikens , the district court's judgment contained a notation that Aikens was advised of his right to an attorney and waived that right with a signed waiver; thus, our court held that in reviewing the subsequent revocation based on that conviction, the "record [was] not silent" on the issue of whether this was an uncounseled municipal court conviction. Aikens, supra , at 2. In Dugan , considering the same argument in an appeal of a revocation proceeding, our court held that the State had met its burden by the alternative method of presenting evidence of the facts giving rise to the district court conviction, which was sufficient to revoke. In Haley , considering the same argument in an appeal of a revocation proceeding, our court held similarly that the State had presented evidence of the facts giving rise to the district court conviction sufficient to revoke.
In the present appeal, the State did not present any evidence at the revocation hearing to support that King was guilty of the misdemeanor crime of public intoxication other than the docket sheet showing the guilty plea. The district court docket sheet is silent on whether King was represented by counsel when she pleaded guilty in district court. The State failed to "show that the facts" supported that King was guilty of public intoxication, even by a preponderance standard. We must follow the precedent set by our supreme court, and we are powerless to overrule its decisions. Williams v. State , 2013 Ark. App. 179, 2013 WL 1010411.
We hold that the trial court erred in denying King's motion to dismiss the State's petition to revoke her probation.
Reversed and dismissed.
Virden and Harrison, JJ., agree.
King repeatedly violated the terms of her probation and was repeatedly placed back on probation, leading to the most recent revocation. The first revocation petition filed by the State in 2012 alleged that King had used PCP multiple times in late 2011 and early 2012. In mid-June 2012, King requested and was granted a transfer of her criminal case to Post-Adjudication Court, commonly known as drug court. See Ark. Code Ann. §§ 16-98-301 et seq. (Repl. 2016). "[A] drug-court program is analogous to probation." Neal v. State , 2016 Ark. 287, at 12, 497 S.W.3d 666, 673. The Arkansas Drug Court Act requires that drug-court programs include "ongoing judicial interaction with each participant." Ark. Code Ann. § 16-98-302(b)(7). King ultimately pleaded guilty to being in violation of her conditions of probation as alleged in the 2012 petition, and the trial court placed King back on probation. King violated her probation conditions again in 2013 by using PCP, which led to the trial court's placing her on probation again in 2014. | [
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BART F. VIRDEN, Judge
Wayne Edens, as executor of the estate of Lois Jean Edens ("appellant"), appeals from the White County Circuit Court's order denying a motion for recusal filed by appellant's attorney, James A. Simpson, Jr. Appellant argues on appeal (1) that there is a conflict in the disqualification law that needs clarification; (2) that the standard of review for disqualification decisions should be de novo, rather than abuse of discretion; and (3) that, even under the current standard of review, the trial court abused its discretion by refusing to recuse. We agree with appellant's third point; therefore, we reverse and remand.
I. The Ferguson Decision
We begin with a discussion of the Ferguson decision by the Arkansas Supreme Court because appellant argues that the trial court here did not apply the proper analysis set forth in Ferguson when deciding whether to recuse. In Ferguson v. State , 2016 Ark. 319, 498 S.W.3d 733, our supreme court granted a petition for review of our decision in Ferguson v. State , 2015 Ark. App. 722, 479 S.W.3d 25, and held that the trial court abused its discretion in not recusing from criminal proceedings when it had previously presided over an adjudication hearing. In the dependency-neglect proceedings, the trial court adjudicated Jacqueline Ferguson's child dependent-neglected and ruled from the bench, "There was physical abuse of the child younger than six years of age. I don't see how you can find anything else." The trial court was later assigned to preside over criminal proceedings after the State filed an information charging Ferguson with domestic battering of that same child. Ferguson filed a motion for recusal on the basis that the "exact same" allegations were being made in the criminal matter as had been made in the dependency-neglect proceedings and that the trial court had demonstrated bias with its comments from the bench. The trial court denied the motion for recusal and denied a jury-trial waiver. Ferguson's case was tried before a jury, and she was convicted of second-degree battery.
In Ferguson's petition for review of this court's decision affirming her conviction, she argued that the trial court abused its discretion in denying her motion to recuse based on Rule 2.11 of the Arkansas Code of Judicial Conduct, which requires a judge to disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including circumstances where the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding and where the judge has presided over the matter in another court.
The supreme court held that the plain wording of Rule 2.11 required the judge to recuse because, by virtue of having presided over the matter in a different court, the judge's impartiality might reasonably be questioned. The supreme court noted that the enumerated examples in the rule are not the only way a judge's impartiality might reasonably be questioned. The supreme court stated,
In the case before us, Ferguson asserted that Judge [Barbara] Elmore's comments in ruling from the bench indicated that she was biased. In denying Ferguson's motion to waive a jury trial, Judge Elmore stated, "If you don't think that I can be impartial in a bench trial, then I'll deny your bench trial. So we'll have a jury trial." It is unnecessary to decide whether these comments indicated actual bias. The fact that Judge Elmore found that Ferguson's questioning of her impartiality required her to withdraw as the finder-of-fact, in essence, demonstrates that the questioning of her impartiality was reasonable. Obviously, if a judge's impartiality may "reasonably" be questioned, the mandatory portion of Rule 2.11 (A) is invoked and the judge is required to disqualify. Significantly, our case law requires a circuit court to be mindful of the perception of bias from the litigant's perspective.
Ferguson , 2016 Ark. 319, at 7, 498 S.W.3d at 737.
In the present case, appellant asserts that the Ferguson decision stands for the proposition that Rule 2.11's use of the word "shall" has mandatory-rather than discretionary-implications, that no showing of actual bias is necessary, and that an objective standard of a reasonable person is determinative of the issue of whether a trial court should recuse. According to appellant, the Ferguson decision did not explain the conflict in our disqualification case law and did not expressly overrule conflicting precedent, leaving room for misunderstanding and misapplication of the analysis, which appellant asserts is what happened here.
II. Motion for Recusal
Mr. Simpson filed a motion for recusal on behalf of appellant requesting that Circuit Judge Thomas Hughes recuse from "any cases involving undersigned Counsel or members of his firm or otherwise cause all cases filed by undersigned counsel or his firm in 1st division to be transferred to another division." The motion for recusal contains the following allegations minus the references to the many attached exhibits:
a. Undersigned counsel represented Sharon Jones in a case styled Lisa Petiriches, Sharon Duncan, Luay Dejani and Summer One, LLC v. Sharon Jones , case number CV-2011-535-3, which was originally in this Court and division. The case became known as the "lottery case." This Court ruled against Ms. Jones in a controversial decision and outcome but later recused from the proceedings and granted a new trial after motions filed by undersigned counsel. The case was extremely public and received national attention. Ms. Jones ultimately received a favorable outcome in the case once it was transferred to another Court.
b. Undersigned counsel filed a complaint with the Judicial Discipline and Disability Commission for reasons which speak for themselves in the complaint. The major points of the JDDC complaint dealt with this Court's improper and inappropriate actions while presiding over the above referenced "lottery case."
c. The JDDC filed undersigned counsel's complaint against the Court for which the Court had to answer. In the process of that proceeding, the Court was confronted with the complaint made by undersigned counsel. That situation and the lottery case are consistently and continuously involved in this case as set out herein.
d. Sometime in late 2013 or early 2014, local attorney, Carla Fuller, entered the race against the Court for the Circuit Judge of the 17th Judicial District, 1st Division. Undersigned counsel was in no way involved with Ms. Fuller's decision to run for the position yet the Court blames undersigned counsel for Ms. Fuller running against him.
e. During the course of the campaign, the Court and his wife made unfavorable public comments and statements to other County officials, local attorneys and other court personnel making their dislike of undersigned counsel known at the Wilbur Mills Courts Building where the Court's office is located.
f. Undersigned counsel endorsed a letter to various residents of White and Prairie Counties and friends supporting Ms. Fuller in her campaign and requesting contributions to her campaign. In the days following the letter being mailed, the spouse of the Court confronted a friend of undersigned counsel, accused undersigned counsel of slandering the Court and stated that, "I am going to get him for this."
g. The letter sent out by undersigned counsel never mentions the Court nor makes any references of any kind that can be taken as slander or any negative remark against the Court yet a threat to "get him" was made by the spouse of the Court.
h. On the Court's campaign Facebook page, references were made to one discontented attorney who was spreading mistruths about the Court. The references appear to be directed at the undersigned counsel.
i. On May 16th, 2014, the Court was campaigning at a restaurant in Kensett, White County, Arkansas. In a conversation with a local gentleman who was dining at the restaurant, the Court called undersigned counsel an "arrogant prick," and blamed him for the difficulty of his campaign. Mr. [Nicky] Hamilton referenced the lottery case to the Court when undersigned counsel was mentioned by name and the Court used the derogatory reference.
j. On the day of the election, the Court made public comments mentioning undersigned counsel by name to local attorney, Winston Collier, and other individuals saying how much he was bothered by undersigned counsel. He discussed at length how hurt and bothered he was by undersigned counsel. He discussed the toll that he felt because of the lottery case, dealing with undersigned counsel and the campaign.
k. The Court made known to the Circuit Clerk [Tami King] through his words and actions that he was mad at, had bad feelings for and spoke of undersigned counsel in a negative light.
l. The Court blamed undersigned counsel for actions during the campaign that are completely untrue. The Court has made known to multiple local attorneys of his dislike, ill will and hatred for undersigned counsel by name. Further, the Court has acknowledged his dislike of undersigned counsel but fears that his recusal from undersigned counsel's cases would allow undersigned counsel to "win" and/or start a domino effect of recusal motions from other lawyers if this motion is granted.
m. Undersigned counsel filed a motion for recusal that included all of the allegations above in the case of The Estate of Karmel Ferren, Deceased , case no. PR-2013-259-1. This Court denied that motion without giving undersigned counsel a hearing. That ruling was appealed to the Arkansas Court of Appeals in the case of Ferren v. USAA , Ark. Ct. App. Case no. CV 14-766. The Arkansas Court of Appeals reversed and remanded the decision of this Court in [an] opinion dated September 16, 2015 [2015 Ark. App. 477, 469 S.W.3d 805]. In its opinion, the Court of Appeals reversed and directed that this Court give undersigned counsel a hearing on the Motion for Recusal. The Court of Appeals did not issue an opinion as to the outright recusal although it stated that the motion filed by undersigned counsel, "clearly consisted of more than conclusory allegations of bias or prejudice." The day after the opinion came down, this Court granted the Motion for Recusal yet never gave undersigned counsel a hearing.
n. The Court of Appeals issued a Mandate directing the Court [to] pay undersigned counsel $1,581.85. Said amount remains unpaid creating further reasons for the Court to recuse due to the fact that undersigned counsel is a creditor of the Court.
o. Based upon the opinion rendered by the Arkansas Court of Appeals and this Court's decision to enter the Order of Recusal in the Estate of Karmel Ferren , undersigned counsel sent a letter to the Court asking for the Court to transfer all cases with undersigned counsel to another Division of the 17th Judicial District. The facts stated above are the same considered by the Court of Appeals and are the same facts upon which this Court recused in the Estate of Karmel Ferren case.
p. In response to the letter, this Court sent a letter to opposing counsel in each and every case that undersigned counsel represents a party in this Court's Division. In that letter, this Court accused undersigned counsel of having prohibited ex-parte communication with the Court. This is, once again, an act of this Court attacking undersigned counsel which reflects this Court's failure and inability to be impartial toward undersigned counsel and the clients that he represents. Ex-parte communication is described as follows: "An ex parte communication occurs when a party to a case, or someone involved with a party, talks or writes or otherwise communicates directly with the judge about the issues in the case without the other parties' knowledge." (Legal-dictionary.thefreedictionary.com.) As can be seen from reading the letter from undersigned counsel, undersigned counsel did not refer to any issue of another case nor mention any fact or detail of any particular case. This Court has insinuated and accused undersigned counsel of having an ex-parte communication with the Court that is in no way an ex-parte communication. Despite the obvious fact, this Court has accused undersigned counsel of committing an unethical act and has attempted to disparage undersigned counsel to multiple attorneys. This Court clearly is impartial [sic] in any and all matters involving undersigned counsel.
q. Undersigned counsel filed a motion for recusal in the case of Phifer v. Ouellette, et al. , White Co. case no. CV-2013-156, which included all of the above facts. The motion was filed on July 7, 2016. On Thursday, July 21, 2016, undersigned counsel was notified via telephone just before 5:00 p.m. by the Court's case coordinator that a hearing was set for July 28, 2016, just seven (7) days later. It was the first time that a hearing had ever been granted by the Court to undersigned counsel on any recusal motion involving the facts above. A motion for continuance was filed so that all relevant witnesses could be procured for the hearing. That motion was denied.
r. A hearing in the Phifer case was held on July 28, 2016. All of the facts above were developed at the hearing. Tami King and undersigned counsel testified live. Deposition testimony was given. Exhibits were introduced. Despite the evidence introduced at the hearing, this Court denied the motion for recusal in an order entered on August 1, 2016.
s. The full hearing and presentation of the facts set forth above speak for themselves.
t. Despite the fact that an order denying the motion for recusal was already entered on August 1, 2016, this Court took it upon himself to enter an amended order. The amended order speaks for itself. Entry of another order was not legally necessary. The amended order is laced with evidence of this Court's bias against undersigned counsel.
Mr. Simpson attached fifteen exhibits to the motion and requested that a previous hearing held in a different case, Phifer v. Ouellette, Personal Representative of the Estate of Ruth Cowin, et al. , CV-13-156-1, serve as the factual basis on which the trial court would determine whether to recuse from appellant's case. The trial court granted Mr. Simpson's request to consider the Phifer hearing and agreed that another hearing was unnecessary.
A. The Phifer Hearing
At the Phifer hearing, Judge Hughes began by denying appellant's motion for continuance in order to subpoena necessary witnesses, such as Nicky Hamilton and Winston Collier, mentioned in the allegations above. Tami King testified that she is the circuit clerk of White County and that she has known Judge Hughes for over twenty years as an attorney and as a judge. She said that she and Judge Hughes have offices in the same building and speak from time to time. King stated that she was aware that the lottery case in 2012 created "a problem as far as [Mr. Simpson's] relationship with Judge Hughes." She recalled the election of 2014 and said that if Judge Hughes mentioned Mr. Simpson's name, "it wasn't in a positive light." She stated that Judge Hughes and his wife were mad at Mr. Simpson. King said that Judge Hughes complained to her about "young, spoiled attorneys" and that she thought Judge Hughes was referring to Mr. Simpson. During Mr. Simpson's examination of King, the trial court interrupted several times and objected to the questioning.
Attorney Brett Watson attempted to call Mr. Simpson as a witness, but the trial court did not accept Mr. Watson's entry of appearance filed that same day on the basis that the trial court had not been notified. The following colloquy occurred:
THE COURT : Well, sir, do you have any evidence that you informed me that you were going to be coming on as attorney in this case or would like to come on?
MR. WATSON : Your Honor, I filed my notice in the record. The Rule does not require instantaneous notice.
THE COURT : Sir-
MR. WATSON : There's nothing that requires instantaneous notice in that Rule. And two hours is really quick notice.
THE COURT : What does immediately mean to you, sir?
MR. WATSON : Well, it can mean a few hours. It might mean seven days since when you set this hearing it took seven days to set it. But-
THE COURT : Oh, you wanted it faster?
MR. WATSON : No, Your Honor. I actually think that the Motion-it should have been continued and that it was set extremely quickly in violation of the way the Court typically sets hearings.
THE COURT : Sir, did you not see the Petition filed by Mr. Simpson asking for an immediate hearing? And are you now criticizing me for giving Mr. Simpson a hearing within seven days when he asked for an immediate hearing?
The trial court then refused to permit Mr. Simpson to act as both an attorney in the case and as a witness but later stated, "I think it's unethical. But if you want Mr. Simpson to testify, have him testify." The following colloquy occurred:
MR. WATSON : And just in response to your statement that it is unethical-
THE COURT : Sir, I don't want your response.
MR. WATSON : Okay. For the record then-
THE COURT : I don't want your response. I'm ordering you not to respond.
MR. WATSON : You're ordering me not to make a record?
THE COURT : Oh, you can make a record, sir.
MR. WATSON : Okay.
THE COURT : But I'm going to tell you right now, I said Mr. Simpson can testify. I expressed my position as a Judge that reading [Arkansas Rule of Professional Conduct] 3.7 would indicate that a lawyer should not testify as a witness. You may disagree with that. Now, I'm allowing your client to testify. If you want to say something obnoxious or if you want to make any comment whatsoever, go there, make your comment. Enjoy yourself. Make your comment. Make your record.
MR. WATSON : For the record, the Judge's comments today at this hearing and his attitude he reflected towards Mr. Simpson and toward me as the plaintiff's attorney is significant-
THE COURT : Sir, you're not attorney of record in this case.
MR. WATSON : -is significant evidence-
THE COURT : Sir, you can stop-
MR. WATSON : -of why-
THE COURT : -right now.
MR. WATSON : -you should recuse.
THE COURT : Sir, I did not rule that you were [an] attorney in this case. I'm ruling you're not attorney of record in this case. You did not give me notice timely. You may sit down.
MR. WATSON : So is that-are you changing your ruling from what you told me a few minutes ago to call Mr. Simpson up here and ask him questions, Your Honor?
THE COURT : No. Mr. Simpson, you can-Mr. Simpson can come up here and testify. But if your job, sir, is to come and just stand here and try to cause confusion rather than clarity, I'm not going to have that. You didn't file a motion until some time today. At that time you stated that you were going to be the attorney in the case. I ruled-I looked at you, I talked to you, I said I don't think you're entitled to be an attorney in this case. You did not qualify properly. You didn't give me immediate notice. Then I did waive it. I said, fine, go ahead. I'll stand with that. Go ahead. Fine, even though I don't think you're qualified, great, go ahead. I'm sorry. Go ahead. Even though I don't think Mr. Simpson's actions are in compliance with Rule 3.7, once again continue, put him up. If he feels comfortable and you feel comfortable, put him up. And if you want to make a record some more, go right ahead.
Mr. Simpson testified that he had a good relationship with Judge Hughes until the lottery case in 2012. He said that the issue of recusal came up when two local attorneys told him that Judge Hughes had made statements to them. The trial court objected to the testimony as hearsay. When asked why Judge Hughes eventually recused, the trial court objected because Mr. Simpson "would [not] have any idea of what my motivation was." Mr. Watson attempted to introduce a motion for recusal filed in the lottery case into evidence, but the trial court refused to admit it because it contained hearsay. The trial court allowed in only portions that did not contain hearsay. Mr. Watson argued that it was not being offered for the truth of the matter asserted, but the trial court disagreed and refused to admit the portions deemed to be hearsay. Mr. Watson proffered the motion. Mr. Simpson described the next exhibit as an amended order granting a new trial and motion to recuse. Mr. Simpson then read the following from the order:
Part of the order says, given the irregularities in the proceeding, the Court orders a new trial. In view of repeated attacks by James A. Simpson, Jr. against the integrity of this Court, this Court's impartiality might reasonably be questioned in the new trial of this case, and the Court will recuse from presiding over the new trial pursuant to Rule 2.11 of the Arkansas Rules of Judicial Conduct. It is so ordered. Signed by Judge Thomas Hughes on May 25, 2012.
Mr. Watson then asked Mr. Simpson what his experience was with the judge to whom the case was transferred, and the trial court asked how it was relevant if there was not some comparison. The trial court began disagreeing with Mr. Watson about whether Mr. Simpson had testified to the treatment he had received from Judge Hughes. Mr. Watson moved to introduce a complaint Mr. Simpson had filed with the Judicial Discipline and Disability Commission (JDDC) against Judge Hughes, but the trial court denied the motion, stating that the complaint was privileged and "totally irrelevant" because the Commission found no wrongdoing. The trial court stated, "And they didn't the second time either, sir, and if you intend to try to get the second Complaint filed, that's not coming in either for the same reason." Mr. Watson attempted to explain the complaint's relevance, but the trial court said,
I don't want to hear about the snide suggestions that I have somehow violated the Rules of Ethics. Mr. Simpson had his day with the Commission. He filed his complaints twice. I had to answer twice. And if you're just trying to establish that I didn't enjoy the process, I'll acknowledge that I did not enjoy reading those Affidavits or Complaints Mr. Simpson filed. I did not think that what was said should have led to any finding of ethical violation, and I certainly found myself spending a lot of time having to respond. And I really didn't enjoy spending that time when I've got a lot of work to do on a lot of cases.
Mr. Watson and the trial court argued about Mr. Watson's attempt to make a record; Mr. Watson was permitted to explain why the complaint should be admitted and proffered the exhibit. Mr. Simpson began to testify about why he had filed the first complaint with the JDDC, and the trial court struck his testimony because Mr. Simpson lacked personal knowledge of what had been said about the lottery case; Mr. Simpson was not competent to testify; and Mr. Simpson's testimony amounted to hearsay. Mr. Simpson and the trial court then began arguing about whether there had been a hearing on a motion for recusal filed in the lottery case. The following colloquy occurred:
THE COURT : And I can tell you right now you never filed that Motion for Recusal until after you lost the case.
[ MR. SIMPSON ]: Well, Judge, the record will speak for itself. That's just not true.
THE COURT : Yes, it will. The record will speak for itself. And the record is in the courthouse. I'm familiar with the record. And, Mr. Simpson, you didn't file a Motion to Recuse until after you lost. And when you did, I recused.
[ MR. SIMPSON ]: Well, if I may, my memory is quite certain that we had a meeting. It was Winston Collier and myself and Red Morgan and his co-counsel on the case, Paul Petty, John Bell met in Judge Hughes's chambers regarding-
THE COURT : I strike that. I strike that. That's Mr. Simpson's hearsay testimony. The Rule in the Arkansas Rules of Civil Procedure is it's the obligation of the attorney to make a record. If he fails to make a record, it's his fault, no one else's fault. If you've got a record, Mr. Simpson, of that meeting, show it to us.
[ MR. SIMPSON ]: I'll do that, Judge. I can either supplement that with an Affidavit or-
THE COURT : I don't want an Affidavit. I want you to tell me if you had a hearing on the issue of recusal. I told you you could. Did you have a hearing on the issue of recusal? And if so, where is the record of it?
[ MR. SIMPSON ]: And to go on-
MR. WATSON : Hold on, Mr. Simpson. Judge, I understand your ruling about Mr. Simpson testifying about this meeting. You're saying even though he was there, you're saying it's hearsay because there's not an official court record of it?
THE COURT : No, sir. I'm saying that if Mr. Simpson was present, he can certainly say what he heard. I have no objection to that. I'm just saying if he has something regarding knowledge that he's basing on hearsay, I'm not going to allow that to come in.
Later in the hearing, the trial court ruled that it would admit both complaints to the JDDC into evidence under seal, along with earlier documents that Mr. Watson sought to admit. Mr. Simpson testified that a local businessman, Nicky Hamilton, told him that Judge Hughes said that "there are a couple of attorneys up town who think they should get special favors because of who they are or what law firm they are in," to which the trial court said, "Counsel, if you're going to read that Affidavit, don't read it in such a fashion that it would imply what it does not imply." The trial court instructed Mr. Watson to read the affidavit but then said, "That's fine. I'm not going to question it. I've seen it often enough, sir, I'm familiar with it. I think I've got it memorized at this point." When Mr. Watson sought to enter a letter written by Mr. Simpson on behalf of Carla Fuller and her campaign, the trial court stopped the questioning to ask the relevance of the letter. When Mr. Watson responded that it showed evidence of bias, the trial court agreed to admit it but then asked to see the letter and said, "I sure don't find it offensive." Mr. Watson then asked the trial court if a break was needed, and the trial court answered affirmatively.
When the trial court returned from the break, Mr. Watson asked for clarification on admission of earlier exhibits. The trial court stated,
[T]his is such an extraordinary hearing where I'm being asked to hear the case, make rulings on evidence, and at the same time I'm not removed from the case like I normally am. Normally, I have nothing in the case. Somebody wins, somebody loses. There's no reason for anybody to question my impartiality. But when the subject is whether I am impartial when it comes to cases of Mr. Simpson's, I'm afraid even if I make a ruling that I think is correct under the law, and I think these all have been, nonetheless people might not understand that I'm doing it from the perspective of Judge and not as an individual.
The trial court then said that because his objections could be misinterpreted, "I don't care what you put in.... By that I mean, enter it, exhibit it, if you feel comfortable with it, you just do what you want." The trial court explained,
I'm going to avoid playing Judge on the admission of evidence. As I reflect on it, I think it doesn't give the right impression. The only person supposedly it would harm if it comes in would be me, which definitely gives the impression I might not want it to come in because it could be damaging to me. I'm afraid people won't think I'm doing it just because I'm looking at it as Judge. So I'm just not going to stop anybody from putting anything in.
The trial court remained quiet during the rest of Mr. Simpson's testimony. Mr. Simpson testified that there were other cases in which the trial court had exhibited "unusual or prejudicial behavior" toward him or his client. Mr. Simpson then described two probate cases and the trial court's review of an administrative agency's finding. Mr. Simpson asserted that in those cases the trial court had suggested that Mr. Simpson had not handled matters properly and ruled against his client even though the opposition had offered no evidence to the contrary. At the end of the Phifer hearing, the trial court permitted Mr. Simpson to make a statement, and then Judge Hughes said, "I'd like to say quite sincerely I would be most happy to recuse from all of Mr. Simpson's cases. But I really think I can be fair and impartial."
After the Phifer hearing, the trial court entered a one-sentence order denying the motion for recusal. A few weeks later, the trial court entered a nine-page amended order, denying the motion. Appellant referred to this amended order in his motion for recusal, describing the order as being "laced with evidence of this Court's bias." The amended order contained the following statements after the trial court's ruling:
I cannot and will not be concerned about the egos of the attorneys who appear before me.
I do not care about Mr. Simpson's wounded vanity. His refusal to accept responsibility for the professional errors he committed in the Petriches case has tainted his view toward me as a person and as a judge. Judges can make mistakes; that is what the appellate system is about. Instead of appealing the Petriches decision, Mr. Simpson elected to start his campaign to systematically destroy my good name and to engage in a continuing pattern of harassment toward me.
Everyone sitting in the courtroom has the dubious pleasure of listening to Mr. Simpson recite once again his delusional thoughts and assumptions about me and my supposed behavior or thoughts concerning him and the Petriches case. He even brought my wife, who is an attorney with over thirty-eight (38) years in practice, with a good reputation and known among the local bar association to be in poor health, into this case over a conversation which purportedly happened in 2014 at our church.
Mr. Simpson clearly has no appreciation for nor understanding of the importance of officers of the court showing respect towards the court. He has demonstrated clear contempt of the Arkansas Supreme Court by his repeated violation of Rule 7 regarding mandatory confidentiality of proceedings before the Arkansas Judicial Discipline and Disability Commission. I am aware of another judge who has been harassed by an attorney who regularly appeared before him. Judges have become like fish in a barrel-easy targets to be defamed with impunity.
If an attorney or a litigant does not want a particular judge and can successfully forum shop by making a judge uncomfortable, spreading gossip or lies about the judge, or by an attorney telling his client the judge does not like him or the litigant and thereby achieve the judge's recusal, the entire judicial system is threatened.
Any appearance of bias that might be perceived has come strictly through Mr. Simpson's continued repeating of his delusional tales and imagined slights. I do not care what Mr. Simpson says about me personally. When Mr. Simpson, however, accuses me of acting unethically in my judicial capacity, it interferes with the performance of my duties and casts a pall over the judiciary.
III. Order on Appeal Denying Motion for Recusal
The trial court entered an order denying appellant's motion. In it, the trial court stated that it had made every effort to convey to Mr. Simpson that he should have no concerns about appearing before it. Attached to the order was a transcript from a meeting held in chambers on April 18, 2013, among Judge Hughes, Mr. Simpson, and attorney James "Red" Morgan. The trial court noted that this probate matter was a random assignment and that Mr. Simpson had waived a hearing on his motion for recusal. The trial court wrote, "Lest any person believe Mr. Simpson thought any decision on this motion to be urgent, it took 182 days for Mr. Simpson to file the motion and bring the motion to the court's attention." The trial court stated that it had carefully reviewed the supreme court's decision in Ferguson, supra , along with Justice Paul Danielson's dissent. The trial court noted that the supreme court "found that the judge's statements made at the dependency-neglect adjudication hearing might cause the defendant to reasonably question the circuit judge's impartiality toward the defendant" and therefore required recusal. (Emphasis in original.) The trial court then noted that the dissent pointed out that the supreme court has previously held that recusal is not required of a judge presiding over a postconviction proceeding merely because he or she presided over the defendant's trial; that the court has previously stated that when a judge's communications are the basis for an allegation of bias, it is necessary to view the communications that the judge makes to, or in front of, the jury; and that the mere fact of adverse rulings is not enough to demonstrate bias. The trial court found that
the decision in Ferguson , supra , has not substantially changed the law of this state regarding recusal. To find otherwise, would impose an intolerable burden on the judiciary and judicial process in this state. Any individual displeased with a judge's decision in a prior hearing in a case could theoretically ask for the judge to recuse in subsequent hearings involving the same issues, such as a change of custody of a minor child, and claim the judge's comments and/or findings at or during a previous hearing were an indication of possible bias.
Referring to the Phifer hearing, the trial court stated that the hearing had lasted over two hours and that Mr. Simpson had been "afforded every opportunity to present his case for recusal." The trial court further stated that Mr. Simpson's actions were not sufficient "to cause such antipathy towards him that I cannot perform the duties of my office impartially and without bias" and noted that Mr. Simpson had made no allegation that either he or his clients had been treated unfairly by the trial court. The trial court thus denied appellant's motion. The trial court then made the following statements:
I acknowledge it was distasteful to sit and listen to the litany of meritless complaints made by Mr. Simpson in the public recusal hearing. In these situations the judge under attack has no attorney to represent him or her. He has no one to point out the discrepancies in the testimony or, in this case, the baseless nature of the attack on the presiding judge. There is no one in the courtroom to make objections or otherwise assist the judge in enforcing compliance with the rules of evidence and civil procedure. Mr. Simpson even violated Rule 7 regarding mandatory confidentiality of proceedings before the Arkansas Judicial Discipline and Disability Commission during the recusal hearing by publicly discussing confidential matters of the Arkansas Judicial Discipline and Disability Commission. I allowed and listened to all of this evidence at the public record hearing in deference to Mr. Simpson's hearing request.
....
Any appearance of bias that might be perceived by any individual has come strictly through Mr. Simpson's continued repeating of his unjustified accusations and imagined slights.
....
I believe Mr. Simpson's repeated attempts to have me recuse from his cases are a determined form of "forum shopping." Appellant now appeals from this order.
IV. Discussion
A. Denial of Motion for Recusal
Canon 2 of the Arkansas Code of Judicial Conduct provides that a "judge shall perform the duties of judicial office impartially, competently, and diligently." Rule 2.11(A)(1) of the Code provides that a judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including when the judge has a personal bias or prejudice concerning a party or a party's lawyer. A judge is presumed to be impartial, and the party seeking recusal must demonstrate bias or prejudice on the part of the judge. Ferren v. USAA Ins. Co. , 2015 Ark. App. 477, 469 S.W.3d 805. The proper administration of the law requires not only that judges refrain from actual bias but also that they avoid all appearance of unfairness. Id. When a judge exhibits bias or the appearance of bias, the appellate court will reverse. Id. We review a trial court's denial of a motion to recuse under an abuse-of-discretion standard. Ferguson, supra. A clearly erroneous interpretation or application of a law or rule will constitute a manifest abuse of discretion. Id. To decide whether there has been an abuse of discretion, the appellate courts will review the record to determine if prejudice or bias was exhibited. Owens v. State , 354 Ark. 644, 128 S.W.3d 445 (2003).
Here, appellant argues that his request for recusal was based on the bias the trial court exhibited toward Mr. Simpson, and even more broadly, it was the appearance of bias that reasonably brought the trial court's impartiality into question. Appellant argues that in the order denying his motion, the trial court seemingly admitted feeling antipathy toward Mr. Simpson but indicated that it was not such that he could not perform his judicial duties impartially and without bias. Appellant asks, "How can a judge have a deep-seated feeling of dislike against an attorney, yet assure that attorney that he will receive impartial treatment?" Appellant also argues that the trial court acknowledged that there may be a perceived appearance of bias but that the appearance of bias was the result of Mr. Simpson's "repeating of his unjustified accusations and imagined slights." Appellant states that the culmination of events leading up to his motion for recusal is proof that the slights against Mr. Simpson are anything but imaginary.
An objective review of this record reveals that appellant's attorney has had what could be described as a contentious relationship with Judge Hughes that has continued over the course of several years. We note that Mr. Simpson has filed two complaints with the JDDC against the trial court and that the trial court has recused from Mr. Simpson's cases in the past, citing Mr. Simpson's "repeated attacks" against it. Considering what transpired at the Phifer hearing and the personal statements leveled at Mr. Simpson after the trial court issued its rulings in Mr. Simpson's cases, we think the trial court's impartiality has reasonably been questioned. While each allegation from appellant's motion for recusal viewed in isolation may not have been sufficient, we hold that those allegations are sufficient when viewed as a whole to create what could be perceived as bias against Mr. Simpson, and by extension, Mr. Simpson's client. Because the trial court's impartiality was reasonably brought into question, Rule 2.11 required the trial court to recuse according to Ferguson . We hold that the trial court abused its discretion in denying appellant's motion for recusal.
B. Remaining Points
Appellant argues that, even though the discretionary standard for recusal has been abandoned, courts have continued to apply then existing case law when deciding disqualification issues. Appellant also asserts that disqualification decisions have been reviewed under the highly deferential abuse-of-discretion standard for decades but that the standard is incongruent with the current disqualification analysis and should be abandoned in favor of the more appropriate de novo standard.
While these arguments are interesting and may even have merit, because we have ruled in appellant's favor on his third point and are granting the relief that he seeks, we need not address his remaining points. We conclude that, even under the more deferential standard of review, appellant prevails. We also point out that, to the extent that appellant requests that this court overrule cases applying what he argues is an "incorrect analysis," we cannot overrule decisions by the Arkansas Supreme Court. Moe v. State , 2017 Ark. App. 546, 532 S.W.3d 110.
Reversed and remanded.
Gladwin and Vaught, JJ., agree.
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